2006 Ohio 4690 | Ohio Ct. App. | 2006
{¶ 2} Appellants McClure, Jagers, and Sabetta are members of a committee responsible for a state initiative petition proposing a law called "The Smoke Free Workplace Act." Appellant SmokeFreeOhio drafted the proposed law.
{¶ 3} On November 17, 2005, the committee filed the initiative petition with Intervenor Ohio Secretary of State J. Kenneth Blackwell ("Secretary"). The petition contained over 167,000 signatures from all 88 counties. On December 1, 2005, the Secretary transmitted part-petitions to the respective boards of elections to determine their validity. Following their review, the boards of elections submitted their respective reports to the Secretary.
{¶ 4} Beginning on December 21, 2005, appellee filed protests against the petition with 34 county boards, including Franklin County. In 33 of the counties, the county prosecutor, on behalf of the respective board of elections, filed an action in the common pleas court pursuant to R.C.
{¶ 5} In his protests, appellee raised several grounds, only one of which is at issue here: some of the circulators had not correctly identified their employer. More specifically, according to appellee, some of the circulators identified their employer as the American Cancer Society ("ACS"), rather than the professional petition-circulating company that actually employed them. Failure to disclose the correct employer, appellee argued, violated R.C.
{¶ 6} On May 4, 2006, the trial court issued a decision on cross-motions for summary judgment. The court granted appellee's motion on the ground that some circulators were not employed by ACS and that failure to provide correct employer information violated R.C.
{¶ 7} Appellants filed timely appeals, and they raise the following assignments of error for this court's review:
1. The Trial Court erred in holding that listing of [ACS] by circulators on a state initiative petition proposing the "Smoke Free Workplace Act" as the person employing the circulator to circulate the petition made the petitions invalid.
2. The Trial Court erred in failing to hold that, as applied to the facts in this case, the application of R.C. §
3. The Trial Court erred in failing to hold that, as applied to the facts in this case, the application of R.C. §
{¶ 8} Appellate review of summary judgments is de novo. Koosv. Cent. Ohio Cellular, Inc. (1994),
{¶ 9} Appellants' first assignment of error asserts that the trial court erred by finding that the circulators' identification of ACS as their employer invalidated the part-petitions. We disagree.
{¶ 10} R.C.
* * * On the circulator's statement for a declaration of candidacy, nominating petition, or declaration of intent to be a write-in candidate for a person seeking to become a statewide candidate or for a statewide initiative or a statewide referendum petition, the circulator shall identify the name and address of the person employing the circulator to circulate the petition, if any.
Baldwin's Ohio Revised Code Annot. (2006 Supp.).
{¶ 11} We begin with the principle that, "[w]here the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted." Sears v. Weimer (1944),
{¶ 12} We find that R.C.
{¶ 13} In support of its argument that R.C.
* * * The [registration] form shall include a space on which the person registering an applicant shall sign the person's name and a space on which the person registering an applicant shall name the employer who is employing that person to register theapplicant. * * *
(Emphasis added.) Baldwin's Ohio Revised Code Annot. (2006 Supp.).
{¶ 14} However, we discern no meaningful difference between "the employer who is employing that person[,]" as used in R.C.
{¶ 15} Having concluded that the reference to "person employing" in R.C.
{¶ 16} In particular, we look to those decisions distinguishing between employees and independent contractors. "Whether someone is an employee or an independent contractor is ordinarily an issue to be decided by the trier of fact. The key factual determination is who had the right to control the manner or means of doing the work." Bostic v. Connor (1988),
{¶ 17} In Gillum v. Indus. Comm. (1943),
Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.
{¶ 18} In Bostic, the court also prescribed the factors to be considered in determining who has the right of control. Those factors include:
* * * [S]uch indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes traveled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts. * * *
Bostic at 146.
{¶ 19} Courts have considered these same factors in determining whether a person or entity is an "employee" or "employer" under certain statutory language. See, e.g., State exrel. Stanadyne, Inc. v. Indus. Comm. (1984),
{¶ 20} We turn now to an application of these legal principles to determine whether the trial court correctly concluded that ACS was not the person employing the affected circulators. According to appellants, ACS managed the SmokeFreeOhio petition effort. As part of that effort, ACS contracted with Arno Political Consultants ("Arno"), a professional signature-gathering company, to collect approximately 75,000 signatures. Under the contract, ACS agreed to pay Arno a set amount for each signature obtained. Arno, in turn, retained and paid circulators as independent contractors. While ACS did not pay the circulators directly, ACS made payment to Arno for the specific use of paying circulators. Through a contact with Arno, ACS directed the signature-gathering effort toward specific geographic areas of Ohio and directed circulators away from events already covered. In these circumstances, appellants argue, requiring disclosure of Arno as the "person employing" the circulators defeats the disclosure of the "true party in interest," that is, the party paying for and supervising the petition effort — ACS.
{¶ 21} In contrast, appellees argue that ACS is not "the person employing the circulators" for purposes of R.C.
* * * [Arno] and its agents shall perform the services under this Agreement as Independent Contractors and shall not be treated as agents or employees of ACS for federal, state, or local tax purposes or for any other purpose. * * *
{¶ 22} In addition, according to appellee, ACS had no relationship with these circulators. In contrast to ACS's relationship with circulators it directly hired and paid, ACS had no records or specific knowledge of the affected circulators. ACS did not train, direct, control, provide tax documentation to or pay the circulators. Instead, Arno and other subcontracting entities performed each of those responsibilities.
{¶ 23} Based on these facts, we agree with the trial court's conclusion that ACS did not employ the affected circulators. The stipulated evidence establishes that ACS made a deposit to Arno for the purpose of paying circulators on a per-signature basis; the agreement between ACS and Arno provided certain payment parameters and stated that no circulators could use tobacco products while gathering signatures; ACS had infrequent interaction with the affected circulators; and, on a few occasions, ACS asked circulators, through Arno, not to go to certain events. This evidence does not establish that ACS controlled the manner or means of the circulators' work. ACS neither received nor retained any paperwork regarding the individual circulators. ACS did not identify, interview, hire, train, directly pay or provide tax documentation to the circulators. Rather, Arno and/or other entities provided all employment-related services to the circulators, had direct contact with the circulators, and directed their day-to-day work. On these facts, we agree with the trial court that ACS was not the person employing the affected circulators for purposes of R.C.
{¶ 24} Appellants argue, however, that such a conclusion conflicts with the Secretary's interpretation of R.C.
{¶ 25} It is well-established that, when interpreting statutes, courts must give due deference to an administrative interpretation formulated by an agency charged with its enforcement. Univ. of Toledo v. Heiny (1987),
{¶ 26} Here, we reject the Secretary's interpretation because it conflicts with the clear and unambiguous statutory directive that circulators must disclose the "person employing" them. Under the facts of this case, it is not reasonable to conclude that ACS is the person employing the affected circulators. Nor is it consistent with the legislative intent behind R.C.
{¶ 27} In Blankenship v. Blackwell (S.D.Ohio 2004),
The record in this case is replete with credible, unchallenged instances of actual fraud in the circulation of petitions. The Ohio Secretary of State has detailed numerous and substantial instances of fraud on the part of petition circulators for the [presidential candidate Ralph] Nader petition ballot. Not only were various petition circulators non-residents of this State, they engaged in outright fraud by using false addresses to purportedly satisfy Ohio law. In addition, circulators engaged in additional acts of fraud by falsely attesting that petitions were circulated when they were not and by falsely attesting to signatures. After consideration of the evidence, the Secretary of State not only decided to exclude Nader's placement on the ballot but also recommended that a criminal investigation be undertaken. * * *
Id. at 923.
{¶ 28} In an opinion concerning whether campaign staff were subject to compensation disclosure requirements under R.C.
Legislative intent in the enactment of R.C.
A special session of the General Assembly enacted Am. Sub. H.B. 1 for the purpose of reforming Ohio's campaign finance laws, and addressing a number of ancillary aspects of the conduct of elections. During the 2004 elections season certain alleged irregularities in the circulation of candidate and issue petitions were reported by the media, and some of those irregularities provided the basis for litigation challenging the placement of a particular candidate or an issue on the ballot. Among the problems identified was the payment of petition circulators on a per signature or per volume basis. Paying a petition circulator for each signature or by volume has a tendency to induce dishonesty and less than scrupulous behavior on the part of the petition circulator.
{¶ 29} Against this backdrop, it makes sense that the legislature would have focused its efforts on requiring the disclosure of the person or entity paying a circulator, particularly a circulator being paid on a per-signature basis. Thus, our reading of the statute as requiring the disclosure of the entity that not only directly controls the manner and means of the circulator's work, but also directly pays the circulator, furthers this legislative purpose. The Secretary's contrary interpretation does not.
{¶ 30} For all of these reasons, we agree with the trial court's conclusion that ACS is not "the person employing" the affected circulators for purposes of R.C.
{¶ 31} In their second and third assignments of error, appellants argue that application of the trial court's interpretation of R.C.
{¶ 32} We begin any constitutional analysis with the principle that statutes carry a strong presumption of constitutionality. Harrold v. Collier,
{¶ 33} As applied here, appellants had the burden to prove that R.C.
{¶ 34} In their second assignment of error, appellants argue that the trial court's interpretation of R.C.
{¶ 35} The Ohio Constitution reserves for the people of the State of Ohio "the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided." Section 1, Article II. The constitution sets out specific requirements for proposing a law by initiative petition. These requirements, the constitution provides, "shall be self-executing, except as herein otherwise provided. Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provisions [that is, provisions for initiative and referendum] or the powers herein reserved." Section 1g, Article II.
{¶ 36} Here, appellants assert that appellee and the trial court have unconstitutionally restricted the power of the people to enact laws by initiative petition because: (1) it is "not practicable" for organizations undertaking a petition effort to rely solely on volunteers to gather the signatures required; and (2) a single interpretation of the disclosure requirements in R.C.
{¶ 37} First, nothing in this or the trial court's interpretation of R.C.
{¶ 38} Second, we do not accept appellants' assertion that the protestor's (or the trial court's) disagreement with the Secretary's interpretation of the statute, standing alone, creates an unconstitutional restriction of the initiative process. We acknowledge the inconvenience arising from conflicting statutory interpretations of the applicable requirements, as well as the delay inherent in the protest process itself. We find, however, in the absence of any evidence that applying the disclosure requirement in this manner inhibits the process, that judicial interpretation and application of a requirement we find to be clear, unambiguous, and in furtherance of legislative intent, facilitates, rather than restricts, the initiative process. Therefore, we overrule appellants' second assignment of error.
{¶ 39} In their third assignment of error, appellants argue that the trial court erred by failing to find that its interpretation of R.C.
{¶ 40} The United States Supreme Court has found that circulating a petition is "`core political speech,' because it involves `interactive communication concerning political change.'" Buckley v. American Const. Law Found.
(1999),
{¶ 41} In Buckley v. Valeo (1976),
{¶ 42} In its review of the disclosure requirements in the Federal Election Campaign Act of 1971,
* * * First, disclosure provides the electorate with information" as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office. * * *
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. * * *
* * *
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.
Buckley I at 66-68.
{¶ 43} In Buckley II, the court looked to these same governmental interests when reviewing Colorado's requirements for disclosures relating to the circulation of petitions. The Supreme Court found invalid Colorado's compelled disclosure of the name and address of each paid circulator and the amount of money paid and owed to each circulator each month, but upheld the compelled disclosure of the names of petition proponents and the proposed ballot measures for which paid circulators were engaged. In upholding the latter provisions, the court found that the "[d]isclosure of the names of initiative sponsors, and of the amounts they have spent gathering support for their initiatives, responds to" the state's substantial interest in providing a "control or check on domination of the initiative process by affluent special interest groups." Buckley II at 202-203.
{¶ 44} Pursuant to Buckley II, appellants acknowledge the state's interest in providing information to the public about the financial support behind an initiative proposal. They argue, however, that the state's interests in informing voters about who has proposed a measure and who has provided funds for its circulation, can only be met by requiring the disclosure of the name of the circulator's "payor," i.e., the source of the funds used to sponsor the petition effort, not the source of the circulator's wages. They do not question the constitutionality of former R.C.
{¶ 45} In contrast to the "payor" disclosure, the "person employing" disclosure required by R.C.
{¶ 46} The United States Supreme Court has determined that states have a substantial interest "in regulating the ballot-initiative process * * * to deter fraud and diminish corruption." Buckley II at 204-205. In addition, the court has found that "recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations[.]" Buckley I at 67-68. Recordkeeping, reporting, and disclosure requirements are also an essential means of gathering the data necessary to detect fraud and abuse in the petition process. Specifically, requiring the disclosure of the person hiring and paying a circulator for collecting signatures is a direct way of gathering information necessary to deter fraud, diminish corruption, and investigate potential abuse by a circulator or the entity that paid the circulator to gather signatures. Thus, this disclosure requirement serves a substantial government interest.
{¶ 47} For these reasons, we conclude that the "person employing" disclosure requirement, "as a general matter, directly serve[s] substantial government interests. In determining whether these interests are sufficient to justify the requirements we must look to the extent of the burden that they place on individual rights." Buckley I at 68. To do so, however, we need evidence of a burden upon individual rights, and appellants have provided none.
{¶ 48} To be clear, appellants do not argue that compelled disclosure of "the person employing" circulators is unconstitutional on its face. They do not argue that requiring any circulator to disclose his or her employer is unconstitutional, nor do they argue that requiring the affected circulators to disclose ACS as the person employing them is unconstitutional. Rather, they argue that requiring them to disclose an entity other than ACS as the person employing them is unconstitutional. We have already rejected appellants' suggestion that the trial court's interpretation would require volunteer, rather than paid, circulators. Appellants present no other evidence of how or whether requiring the disclosure of an entity other than ACS impacts
{¶ 49} Appellants have not, for example, presented evidence that disclosing the entity that directly hires and pays the affected circulators would reduce the number of persons available to circulate petitions. Cf. Buckley II at 193 ("[b]eyond question, Colorado's registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions"). Nor have appellants presented evidence that requiring the disclosure of an entity other than ACS inhibits circulators. Cf. id., at 198 (citing evidence that Colorado's badge requirement inhibited participation in the petition process because circulators feared harassment, recrimination, and retaliation). As the trial court concluded: "Intervenors present little to no evidence or arguments to show why or how R.C.
{¶ 50} In order for the trial court to determine that R.C.
{¶ 51} Having overruled appellants' first, second, and third assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, and we sua sponte lift the stay previously imposed upon that judgment.
Judgment affirmed.
Brown and Sadler, JJ., concur.
