In Re Protest of Brooks
{¶ 1} Appellant, The Ohio Coalition for Affordable Prescription Drugs, brings these consolidated appeals from the decisions of the Allen County Court of Common Pleas and the Marion County Court of Common Pleas invalidating certain part-petitions for failure to comply with
{¶ 2} The facts and procedural history pertinent to this appeal are as follows. The appellant seeks to propose a law that it has designated “The Ohio Prescription Drug Fair Pricing Act.” The proposal seeks to affect the price at which Ohio residents purchase prescription drugs. To accomplish this, appellant began circulating an initiative petition pursuant to Section lb, Article II of the Ohio Constitution.
{¶ 3} To be considered valid, a petition must conform to the requirements of
{¶ 4} To help with the collection of signatures for the petitions at hand, appellant hired a professional petition firm, National Voter Outreach (“NVO”). NVO subcontracted with an individual by the name of John Mitchell to coordinate the circulation of the petitions in the Cincinnati and Dayton areas.
{¶ 5} After the necessary number of signatures had been obtained, the appellant filed the petition with the Secretary of State. The Secretary of State then separated the petition by counties and sent the part-petitions to the respective county board of elections to determine the sufficiency and validity of each part-petition, pursuant to
{¶ 6} Keith Brooks, an opponent of the initiative petition, filed a written protest with the Allen County Board of Elections on January 17, 2003, and with the Marion County Board of Elections on January 21, 2003. As a consequence,
{¶ 7} The Allen County trial court found that several part-petitions contained invalid signatures and other part-petitions contained improperly completed circu-lator compensation statements. Likewise, the Marion County trial court invalidated one of the eight part-petitions it reviewed because it contained an incomplete circulator compensation statement, and it invalidated four others because the circulator knowingly allowed individuals to sign for others.
{¶ 8} It is from these decisions the appellant appeals, asserting six assignments of error for our review. For clarity of analysis, assignments of error have been combined when appropriate.
ASSIGNMENT OF ERROR NO. Ill
“The Allen County trial court erred in invalidating certain part-petitions in finding that the circulator’s compensation requirements ofR.C. 3519.05 are constitutional.”
ASSIGNMENT OF ERROR NO. VI
“The Marion County trial court erred in invalidating certain part-petitions because it failed to find the circulator compensation provisions ofR.C. 3519.05 are unconstitutional.”
{¶ 9} Before reaching the appellant’s particular arguments regarding the petitions, we will address appellant’s assertion that the circulator’s compensation statement required by
{¶ 10} On review of statutory acts, a court is bound to give a constitutional rather than an unconstitutional construction if one is reasonably available.
United Air Lines v. Porterfield
(1971),
{¶ 11} We consider first the challenge under the
{¶ 12} Appellant contends that the compensation statement does not “facilitate the operation” of the power of the people to propose laws by initiative. Rather, appellant argues that the circulator’s compensation statement adds an extra-constitutional requirement to the initiative process that effectively restricts the exercise of the right of referendum.
{¶ 13} The United States Supreme Court has reasoned that disclosure requirements for paid circulators provide voters with information regarding the source and amount of money spent by proponents to place proposed legislation on the ballot. Such requirements also help to avoid the “appearance of corruption by exposing large contributions and expenditures to the light of publicity.”
Buckley v. Am. Constitutional Law Found., Inc.
(1999),
{¶ 14} In the case sub judice, we find that the effect of the circulator’s compensation statement requirement does not, in any meaningful manner or degree, restrict or limit the ability of people to sign initiative petitions. Rather, it provides potential signers with important information regarding the initiative so that when they are asked by a circulator to sign a petition, they may make a more informed decision whether or not to do so. The disclosure requirement serves to help deter circulation fraud and abuse by encouraging petition circula-tors to be truthful and self-disciplined.
Buckley,
{¶ 15} “States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process * * *.” Id. at 191,
{¶ 16} Appellant further contends that the circulator’s compensation statement requirement is an unconstitutional infringement under the free speech guarantee of the First Amendment to the United States Constitution. Appellant relies on
Buckley v. Am. Constitutional Law Found,., Inc.
(1999),
{¶ 17} In
Buckley,
the United States Supreme Court invalidated a Colorado initiative petition statute requiring petition proponents to disclose, by a separate filing, the names and addresses of only those petition circulators who were paid and the amount each circulator received. The Court reasoned, “listing paid circulators and their income from circulation Torc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts’ * * * Colorado’s reporting requirements, to the extent they target paid circulators, fail exacting scrutiny.”
Buckley,
{¶ 18} The appellant claims that the Ohio requirement of a compensation statement on initiative petitions has the same effect as the invalid provisions of the Colorado statute. We do not agree.
{¶ 19} The compensation statement required by
“In consideration of his services in soliciting signatures to this petition the solicitor has received or expects to receive_from_ (Whose address is)__
“Before any elector signs the part-petition, the solicitor shall completely fill in the above blanks if the solicitor has received or will receive any consideration and if the solicitor has not received and will not receive any consideration he shall insert ‘nothing.’ ”
{¶ 20} The compensation statement required by
{¶ 21} Moreover, the
Buckley
Court did not invalidate the Colorado requirement to disclose the names of those who had paid others to circulate initiative
{¶ 22} Accordingly, appellant’s third and sixth assignments of error are overruled.
ASSIGNMENT OF ERROR NO. II
“The Allen County trial court erred in invalidating certain part-petitions on the basis of the amount of compensation set forth in the compensation statement on such petitions.”
ASSIGNMENT OF ERROR NO. IV
“The Marion County trial court erred in invalidating certain part-petitions on the basis of the amount of compensation set forth in the compensation statement on such petitions.”
{¶ 23} We address first appellant’s argument within this assignment of error that both the Allen and Marion County Common Pleas Courts lacked subject matter jurisdiction to invalidate part-petitions for deficiencies in the completion of the circulator’s compensation statements. The determination of subject matter jurisdiction is reviewed de novo, and we are not required to award any deference to the trial court’s determination of the matter.
McClure v. McClure
(1997),
{¶ 24} Appellant claims that
{¶ 25}
“If the circulator of any part-petition, the committee interested therein, or any elector files with the board of elections a protest against the board’sfindings made pursuant to section 3519.15 of the Revised Code, then the board shall proceed to establish the sufficiency or insufficiency of the signatures and of the verification thereof in an action before the court of common pleas in the county.” (Emphasis added.)
{¶ 26} In reviewing a statute, it is presumed that the entire statute is intended to be effective.
{¶ 27}
“No initiative or referendum part-petition is properly verified if it appears on the face thereof, or is made to appear by satisfactory evidence:
“(A) That the statement required by section S519.05 of the Revised Code is not properly filled out;
“(B) That the statement is not properly signed;
“(C) That the statement is altered by erasure, interlineation, or otherwise;
“(D) That the statement is false in any respect;
“(E) That any one person has affixed more than one signature thereto.”
(Emphasis added.)
{¶ 28}
{¶ 29} Appellant further argues the Allen County trial court was lacking jurisdiction because the Allen County prosecuting attorney failed to file a motion to determine the sufficiency of the part-petitions within the time allowed. Pursuant to
{¶ 31} Even if appellees had not filed the petition within the three-day period, the delay would not have destroyed the jurisdiction of the Allen County trial court. “As a general rule, a statute providing a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure.” (Citation omitted.)
State ex rel. Ragozine v. Shaker
(2002),
{¶ 32} A general objective of the three day period is to encourage prompt action to prevent unjust delay that would abuse or frustrate the initiative process.
{¶ 33} Having found that the Allen County and Marion County trial courts had jurisdiction to evaluate the circulator’s compensation statements, we now consider the appellant’s specific arguments asserting error in the trial courts’ invalidation of certain statements for failure to properly insert the compensation received for circulating the petitions.
{¶ 34} Our analysis of an appeal from the trial court’s construction of a statute is conducted under a de novo standard of review since statutory interpretation is a matter of law.
State v. Werner
(1996),
{¶ 35} The settled rule is that election laws are mandatory and require strict compliance and that substantial compliance is acceptable only when an election provision expressly states that substantial compliance is permissible.
State ex rel. Phillips v. Lorain Cty. Bd. of Elections
(2001),
{¶ 36} The Allen County trial court reviewed nine part-petitions containing between 50 and 75 signatures each and found that Nos. 1035, 1036, 1039 and 3842 were invalid because the circulator’s compensation statements were improperly filled out. The trial court specifically found that there was no true disclosure as to how much had been paid to individual circulators. One part-petition listed “$29.00” as the amount received, another listed “100-125” and others listed the number of hours worked. The Allen County trial court found that these amounts were invalid, as they did not indicate whether the amount was per hour, per day or per signature. For the same reasons, the Marion County trial court invalidated part-petition No. 4403, which listed “1.00 to 1.25” as the amount received.
{¶ 37} Appellant argues that because
{¶ 38}
{¶ 39} With respect to part-petition No. 1039, however, which listed “$29.00” as the amount of compensation received, we do not find that this petition was not properly filled out. Twenty-nine dollars is a fixed sum rather than a range of pay or amount of hours worked. Moreover, there is nothing in the record to suggest that the circulator of part-petition No. 1039 was not paid $29.00 for circulating that particular part-petition. Therefore, the Allen County trial court erred in invalidating part-petition No. 1039.
{¶ 40} Appellant argues that the Allen County trial court erred in invalidating part-petitions Nos. 1035 and 1036 on the basis that the compensation statement reported the numbers of hours worked. Appellant asserts that no evidence was presented that would indicate the circulators were paid at all for those two petitions. Appellant’s argument is without merit, as the statute specifically directs the circulator to insert “nothing” in the blank if he will not receive compensation. If the circulators of part-petitions Nos. 1035 and 1036 were paid, the number of hours worked was an invalid amount of compensation. If they were not paid, they still failed to properly complete the compensation statement.
{¶ 42} Appellant’s second assignment of error is sustained in part and overruled in part. Appellant’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. I
“The Allen County trial court erred in invalidating certain part-petitions on the basis of the address of the payor set forth in the compensation statement on such petitions.”
{¶ 43} The circulator’s compensation statement found in
{¶ 44} The Allen County trial court invalidated part-petition No. 3842, which listed John Mitchell as the payor in the compensation statement whose address is “2301 E. Sharon Rd., Cincinnati, OH 45241.” The trial court found that this address was false, as it was the address of a Red Roof Inn where Mitchell stayed during the circulation of the petitions and that Mitchell’s actual residence was in San Diego, California.
{¶ 45} Although we found herein that the Allen County trial court did not err in invalidating part-petition No. 3842 based on the incomplete amount of compensation contained in the circulator’s compensation statement, we determine that the address of the payor listed on this particular part-petition would also be a basis for invalidation.
{¶ 46} The American Heritage Dictionary defines “address” as “the location at which a particular organization or person may be found or reached.” American
{¶ 47} The disclosure of the payor’s address also serves to protect the reliability and integrity of the initiative process. See
Buckley v. Am. Constitutional Law Found., Inc.
(1999),
{¶ 48} Pursuant to
{¶ 49} Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. V
“The Marion County trial court erred in invalidating, in toto, certain part-petitions on the basis of one person signing for another.”
{¶ 50}
{¶ 51} The Marion County trial court found that part-petitions Nos. 858, 862, 1636 and 1637 contained several instances of individuals signing for others. Although the Marion County trial court judgment entry reflects that the parties agreed that this did occur, the appellant argues that this misconduct does not require or permit the invalidation of entire petitions. Appellant asserts that the proper remedy is simply to strike the invalid signatures.
{¶ 52}
“I,_, declare under penalty of election falsification that I am the circulator of the foregoing petition paper containing the signatures of _electors, that the signatures appended hereto were made and appended in my presence on the date set opposite each respective name, and are the signatures of the persons whose names they purport to be, and that the electors signing this petition did so with knowledge of the contents of same.”
{¶ 53} This requirement is constitutional, found in the
{¶ 54} The circulators of the particular petitions in question signed these statements. In doing so, they declared that the signatures contained therein were the signatures of the persons whose names they purported to be. Further, by signing this statement, the circulator declared that he had knowledge the signatures were valid because they were signed in his presence, i.e., he witnessed the signing. Appellant concedes that these declarations were false but claims that the complete invalidation of the part-petition was not the proper remedy. For the following reasons, we disagree.
{¶ 55} In
State ex rel. Commt. for the Referendum of Lorain Ordinance,
{¶ 56} We find that because the circulators of part-petitions Nos. 858, 862, 1636, and 1637 allowed individuals to sign for others, they could not have witnessed every signature or, if they did, they knew that some signatures were not affixed by the persons whose names they purported to be. Either way, the circulator’s statements on these part-petitions are false. In applying
{¶ 57} Appellant’s fifth assignment of error is overruled.
{¶ 58} Having found error prejudicial to appellant herein, in the particulars assigned and argued, we affirm in part and reverse in part the judgment of the Allen County trial court on the sole ground that part-petition No. 1039 should not have been found invalid and remand the matter for further proceedings consis
Judgment affirmed in part and reversed in part in Allen County case No. 1-03-16.
Judgment affirmed in Marion County case No. 9-03-19.