State ex rel. Pennington v. Bivens (Slip Opinion)
2021 Ohio 3134
Ohio2021Background:
- Whitehall City Council adopted a zoning- amendment ordinance on June 16, 2021 changing parcels to an A-2 Apartment District.
- Petitioners prepared a referendum petition and initially filed a certified copy of the ordinance (without exhibits) with the city attorney, then circulated and submitted the petition; the Franklin County Board of Elections certified sufficient signatures.
- City Attorney Bivens rejected the petition as insufficient, citing Whitehall Charter §15(a) (requiring the full proposed ordinance) and R.C. 731.32 (requiring filing a certified copy with the city auditor before circulation).
- Petitioners filed an amended petition including exhibits; the BOE again certified signatures; Bivens again refused certification on the ground petitioners had not complied with R.C. 731.32.
- Petitioners sought mandamus to compel Bivens (or city council) to certify sufficiency and to compel referral to the November 2, 2021 election; the Supreme Court held R.C. 731.32 does not apply because Whitehall’s charter contains initiative and referendum provisions and thus R.C. 731.41 excludes the statutory scheme.
- Court granted writ in part (order Bivens to certify sufficiency so council can refer measure to voters), declined to apply laches, and denied attorney fees.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 731.32 precirculation filing requirement applies to Whitehall | Petitioners: Charter governs; petitioners filed with city attorney as charter requires, so R.C. 731.32 does not apply | Bivens: Charter incorporates general law by §79; because charter is silent on precirculation, R.C. 731.32 applies | Held: R.C. 731.41 excludes statutory scheme when municipality has its own charter initiative/ref provision; charter controls and R.C. 731.32 does not apply |
| Whether city attorney abused discretion by rejecting petition for failing to file certified ordinance with auditor before circulation | Petitioners: Rejection was erroneous because charter procedures (file with city attorney) prevail; no auditor precirculation requirement in charter | Bivens: Rejection proper under R.C. 731.32 as incorporated by charter | Held: Bivens abused discretion; petitioners complied with charter processes and petitioners’ petition must be certified |
| Whether laches bars mandamus because of petitioners’ delay in filing this action | Petitioners: Delay was short; no actual material prejudice to respondents; absentee-ballot deadlines still met | Respondents: 21-day delay forced expedited schedule and prejudiced respondents | Held: Laches denied—no showing of actual, material prejudice and sufficient time remained for absentee-ballot preparation |
| Whether petitioners are entitled to attorney fees | Petitioners: Seek fees under taxpayer-action statutes or bad-faith standard | Respondents: Actions reasonable under controlling precedent | Held: Denied—no bad faith and respondents had reasonable legal support for their position |
Key Cases Cited
- State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1 (1966) (charter language that fills statutory gaps may incorporate R.C. 731.28–731.41; where charter expressly adopts statutes, statutory precirculation rules apply)
- State ex rel. Citizens for a Better Beachwood v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 167 (1991) (applied Nimon to hold R.C. 731.32 controls when charter incorporates general law by reference and is silent on precirculation)
- State ex rel. Columbus Coalition for Responsive Govt. v. Blevins, 140 Ohio St.3d 294 (2014) (held statutory precirculation requirements apply to charters that incorporate general law by reference, absent a conflict)
- State ex rel. Duclos v. Hamilton Cty. Bd. of Elections, 145 Ohio St.3d 254 (2016) (noted laches rarely bars election cases; prejudice to absentee-ballot preparation can be dispositive)