80 Ohio St. 3d 255 | Ohio | 1997
Lead Opinion
Winemiller asserts in her propositions of law that the court of appeals erred in granting the writ of mandamus. In order to be entitled to the writ, appellees had to establish that (1) they have a clear legal right to have Winemiller transmit the initiative petition and a certified copy of the text of the proposed ordinance and certify the sufficiency and validity of the petition to the boards of elections, (2) Winemiller, as Union Clerk of Council and Director of Finance, has a clear legal duty to perform these acts, and (3) appellees have no adequate remedy in the ordinary course of the law. Morris v. Macedonia City Council (1994), 71 Ohio St.3d 52, 54, 641 N.E.2d 1075, 1077.
Post-Filing Signature Removal
In her first proposition of law, Winemiller contends that appellees did not have a clear legal right to have the petition certified to the boards of elections and she did not have a corresponding duty to certify and transmit the petition because she properly subtracted the withdrawn signatures from the petition.
Winemiller relies on the common-law rule, which provides that “[wjhere there is no statutory provision to the contrary, an elector has a right to withdraw his or her name from a referendum petition ‘ * * * at any time before official action has been taken thereon and before an action in mandamus has been properly commenced * * *, although after the time within which such petition is required by law to be filed and after it actually has been filed.’ ” (Emphasis added.) State ex rel. Bd. of Edn. for Fairview Park School Disk v. Bd. of Edn. for Rocky River School Disk (1988), 40 Ohio St.3d 136, 139, 532 N.E.2d 715, 717-718, quoting Lynn v. Supple (1957), 166 Ohio St. 154, 1 O.O.2d 405, 140 N.E.2d 555, paragraph two of the syllabus.
The court of appeals held that Winemiller erred in relying on the common-law right of withdrawal because R.C. 3501.38(H) and (I) abrogated the common-law rule. “ ‘Statutes * * * will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it [sic] clearly expresses or imports such intention.’ ” (Emphasis sic.) Bresnik v. Beulah Park Ltd. Partnership, Inc. (1993), 67 Ohio St.3d 302, 304, 617 N.E.2d 1096, 1098, quoting State v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus.
Municipal initiative and referendum petitions are governed by R.C. 731.28 et seq. and in all other respects by the rules set forth in R.C. 3501.38. R.C. 731.31. R.C. 3501.38 provides that “[a]ll * * * petitions presented to or filed with the secretary of state or a board of elections or "with any other public office * * * for the holding of an election on any issue shall * * * be governed by the following rules:
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“(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office.” (Emphasis added.)
The plain language of R.C. 3501.38(H) and (I) expressly precludes the removal of signatures after the petition is filed with the applicable public office.
Winemiller also relies on certain language from State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 294, 649 N.E.2d 1205, 1209, stating that one of the purposes of the ten-day inspection period in R.C. 731.28 and 731.34 is to permit electors who have signed a petition the opportunity to withdraw their names. But the foregoing language is dictum, and Thum did not involve or analyze R.C. 3501.38(H) and (I) and their effect on the common-law right to withdraw. Thum is thus inapposite.
More recently, in State ex rel. Fite v. Aeh (1997), 80 Ohio St.3d 1, 684 N.E.2d 285, we expressly held that R.C. 3501.38(H) and (I) prohibit a city clerk from removing signatures based on signature withdrawal petitions received after recall petitions had been filed with the clerk. Similarly, Winemiller was prohibited from refusing to count initiative petition signatures based on the signature removal forms filed with her after the filing of the petition. Winemiller’s first proposition of law is consequently meritless.
Abuse of Discretion
In her second proposition of law, Winemiller contends that she did not abuse her discretion in refusing to certify the petition to the boards of elections based on her belief that there were insufficient signatures due to the signature removal forms. Winemiller’s contention lacks merit. Granted that she possesses discre
Adequate Remedy; Declaratory Judgment
In her third proposition of law, Winemiller asserts that the court of appeals erred in granting a writ of mandamus because declaratory judgment constituted an adequate remedy in the ordinary course of the law. A writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of the law. R.C. 2731.05. In order for an alternative remedy to constitute an adequate remedy at law, it must be complete, beneficial, and speedy. State ex rel. Crabtree v. Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 249-250, 673 N.E.2d 1281, 1284.
Declaratory judgment is not an adequate remedy here because it is not sufficiently complete. In general, where declaratory judgment would not be a complete remedy unless coupled with ancillary extraordinary relief in the nature of a mandatory injunction, the availability of declaratory judgment does not preclude a writ of mandamus. State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 537, 653 N.E.2d 349, 355. Absent a mandatory injunction compelling Winemiller to perform the requested acts, a declaratory judgment would not be a complete remedy.
In addition, a declaratory judgment action would not have been sufficiently speedy. See, e.g., State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 341, 673 N.E.2d 1351, 1354 (In election cases, “declaratory judgment might not provide an adequate remedy in the ordinary course of law.”); cf. Thum, 72 Ohio St.3d at 291-292, 649 N.E.2d at 1207-1208, citing State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6,18 O.O.3d 128, 129, 412 N.E.2d 393, 394. As the court of appeals noted, Winemiller had to transmit the initiative petition and a certified copy of the text of the proposed ordinance to the Montgomery and Miami County Boards of Elections and certify the petition’s sufficiency and validity by August 20, in order to submit the ordinance proposed by the petition to the Union electors at the November 4 ballot. R.C. 731.28.
Conclusion
Based on the foregoing, the court of appeals did not err in granting the requested writ of mandamus. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
. Although R.C. 731.28 requires the petition to be filed with the city auditor or village clerk, Section 7.01 of the Union Charter provides that in initiative and referendum matters, “all documents which according to the laws of the state are to be filed with the auditor shall be filed with the Clerk of the Council.” Winemiller conceded she was the proper respondent in the mandamus actions.
. R.C. 731.28 provides:
*260 “Ordinances and other measures providing for the exercise of any powers of government granted by the constitution or delegated to any municipal corporation by the general assembly may be proposed by initiative petition. * * *
“When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days, transmit a certified copy of the text of the proposed ordinance or measure to the board of elections. The auditor or clerk shall transmit the petition to the board together with the certified copy of the proposed ordinance or other measure. The board shall examine all signatures on the petition to determine the number of electors of the municipal corporation who signed the petition. The board shall return the petition to the auditor or clerk within ten days after receiving it, together with a statement attesting to the number of such electors who signed the petition.
“The board shall submit such proposed ordinance or measure for the approval or rejection of the electors of the municipal corporation at the next general election occurring subsequent to seventy-five days after the auditor or clerk certifies the sufficiency and validity of the petition to the board of elections. * * * ”
Winemiller does not raise in this appeal, and we thus need not consider, whether the court of appeals’ initial entry, as subsequently clarified, ordering Winemiller to certify the sufficiency and validity of the petition prior to the elector examination by the board of elections was premature pursuant to R.C. 731.28. We further note that by the time of the clarification order, the board had already conducted its review of eligible electors and determined that the petition contained sufficient signatures.
Concurrence Opinion
concurring separately. In State ex rel Thum v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 294, 649 N.E.2d 1205, 1209, this court stated that one of the purposes of the ten-day inspection period of R.C. 731.28 and 731.34 is to give “the electors who have signed the petition an opportunity to withdraw their names if they so desire.” Again in Thurn we noted that R.C. 731.28 and 731.34 “were violated because the early certification prevented electors from withdrawing their signatures following certification but prior to the expiration of the ten-day period.” Id. at 295, 649 N.E.2d at 1210.
