Case Information
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State
ex rel. Beard v. Hardin,
Slip Opinion No.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
S LIP PINION N O . 2018-O -1286 T HE TATE EX REL . B EARD ET AL . v . H ARDIN ET AL .
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as
State ex rel. Beard v. Hardin,
Slip Opinion No.
Mandamus—Writ of mandamus sought to compel city council and county board of
elections to place proposed charter amendment on the ballot—City council did not have a clear legal duty to submit the proposal to the board of elections—Proposal violated Columbus City Charter 42-2(d), which states that the proposal to be submitted may not address multiple or unrelated subject matters—Board of elections did not have a clear legal duty to place a proposed charter amendment on the ballot when city council had not passed an ordinance approving the placement of the amendment on the ballot—Writs denied.
(No. 2018-0335—Submitted March 26, 2018—Decided April 4, 2018.) I N M ANDAMUS .
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K ENNEDY , J. In this expedited election case, relators, Jonathan C. Beard and a
committee in support of an initiative petition, Everyday People for Positive Change, seek a writ of mandamus to compel respondent members of the Columbus City Council to approve an ordinance placing a proposed city-charter amendment on the May 8, 2018 ballot. Relators also seek to compel respondent Franklin County Board of Elections to place the proposed amendment on the ballot. We deny the writs as to all respondents.
I. Case Background In May 2017, Beard submitted to the Columbus city clerk a certified
copy of a petition for an initiative that would amend 11 sections of the Columbus City Charter. He was acting on behalf of Everyday People for Positive Change, the petition committee organized to support the proposed ballot measure. The petition’s title states its objectives, in general terms:
To enact electoral system and related administrative changes to Columbus City Council by amending Sections 3, 4, 5, 6, 14, 17, 18, 20, 22, 41, and 46 of the Charter to create ten city council districts, establish nomination requirements for candidates from districts, provide for election of council members from districts, reduce the number of council members elected at-large to three, regulate growth in council staffing, change the process for mid-term appointments to vacant council seats, create term limits, establish contribution limits for council elections, and provide public access television for council elections.
The proposed changes would increase the size of city council (from 7 to 13 members); introduce district representation for 10 of the seats; impose term limits; *3 establish new rules for filling vacancies on council; establish new eligibility requirements for members; limit the number of staff employed by council; and introduce rules for city-council campaigns, including contribution limits and guaranteed time on public-access television.
{¶ 4} The city attorney reviewed the petition in May 2017, as required by Columbus Charter 42-5. In a memorandum to the city clerk and council members, the city attorney stated his opinion that the petition violates the one-proposal rule, which provides that “[a] petition may only contain one proposal, which shall not address multiple or unrelated subject matters.” Columbus Charter 42-2(d). Relators knew of the city attorney’s concerns in May 2017, as shown in a letter dated May 16, 2017, in which their attorney expressed his disagreement with the city attorney’s determination. Relators circulated the petition for signatures, and on February 6,
2018, Beard filed signed part-petitions with the city clerk. The Franklin County Board of Elections validated a sufficient number of signatures for the proposal to be placed on the May 8 ballot. On February 26, as required by Columbus Charter 42-9, the city
attorney advised the city clerk and the city council on the legal sufficiency of the petition. In this memorandum, the city attorney again stated his opinion that the “petition violates the single-subject requirement.” Based on his conclusion that the petition is not legally sufficient, the city attorney told the council that it could “reject forwarding these proposed amendments to the City Charter to the Board of Elections for voter consideration.” The same day, the council passed an ordinance providing that the proposed charter amendment would not be placed on the May 8 ballot. Relators filed this original action for a writ of mandamus on March 5.
II. Argument of the Parties Regarding Issuance of the Writs of Mandamus Relators argue, relying on jurisprudence interpreting the one-subject rule in Article II, Section 15(D), of the Ohio Constitution, that the proposed charter amendments do not violate the one-proposal rule, because the provisions all share a “common purpose, which is the comprehensive improvement of Columbus City Council.” Respondent members of the city council argue that we need not reach the merits of relators’ claim, because it is barred under the doctrine of laches. Respondents also assert that this court should not follow the constitutional-one- subject-rule jurisprudence, because the one-subject rule “is not applicable” here. The council members argue that the proposed amendment fails because it contains “disjointed and unrelated topics and subjects.” Respondent Franklin County Board of Elections argues that it carried out its legal obligation and duty by certifying the signatures on the petitions pursuant to the statutory framework governing charter- amendment initiatives and that it cannot place the issue on the ballot without city council acting first.
III. Relators’ Motions
A. Motion for leave to file an amended complaint Relators moved for leave to amend their complaint to add as relators
five additional members of Everyday People for Positive Change. This request is
governed by Civ.R. 15(A), which provides that leave to amend shall be freely given
“when justice so requires.”
See Tatman v. Fairfield Cty. Bd. of Elections
, 102 Ohio
St.3d 425,
B. Motions for leave to file amended affidavits In their brief, the council members argue that we should deny the
writs because the affidavit supporting relators’ complaint does not comply with
S.Ct.Prac.R. 12.02(B)(2), which requires an affidavit supporting an original-action
complaint to “be made on personal knowledge, setting forth facts admissible in
evidence, and showing affirmatively that the affiant is competent to testify to all
matters stated in the affidavit.” As the council members point out, we have
“routinely dismissed original actions, other than habeas corpus, that were not
supported by an affidavit expressly stating that the facts in the complaint were based
on the affiant’s personal knowledge.”
Hackworth
at ¶ 24. “An affidavit that is
made ‘to the best of’ an affiant’s ‘personal knowledge and information’ does not
satisfy S.Ct.Prac.R. 12.02(B)(2), because that type of statement does not make clear
‘which allegations are based on personal knowledge and which allegations are
based simply on information.’ ”
State ex rel. Simonetti v. Summit Cty. Bd. of
Elections
,
statements that I make in this Affidavit are based upon my personal knowledge or upon information that I believe to be true .” (Emphasis added.) Because the affidavit is qualified in this way, it does not comply with S.Ct.Prac.R. 12.02(B)(2). In addition, an affidavit made by Beard that was submitted by relators as evidence fails to comply with S.Ct.Prac.R. 12.06 because it has the same defect. Relators filed two motions to amend and two new affidavits to address these problems. The new affidavits remove the offending language that qualifies the statements as based on information that Beard “believe[s] to be true”; therefore, they comply with S.Ct.Prac.R. 12.02(B)(2) and 12.06. But they also include other, relatively minor changes. Most notably, they state, “All the electors *6 who signed the petition reside in Franklin County, Ohio. None of the electors who signed the petition reside in Delaware County, Ohio or in Fairfield County, Ohio.” It will become evident later that these substantive changes are not material to our analysis.
{¶ 13}
We ordinarily allow relators an opportunity to cure noncompliance
with the personal-knowledge requirement.
See State ex rel. Youngstown v.
Mahoning Cty. Bd. of Elections
,
IV. Law and Analysis A. Laches We have applied laches in elections cases, which require relators to
act with “[e]xtreme diligence and promptness.”
State ex rel. Ryant Commt. v.
Lorain Cty. Bd. of Elections
,
declaratory judgment—would have been unavailable to relators in May 2017. For
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a mandamus claim to succeed, a relator must have a clear legal right to, and the
respondent must have a clear legal duty to provide, the relief requested.
State ex
rel. Linnabary v. Husted
, 138 Ohio St.3d 535,
N.E.2d 887 (1977), which the council members cite in their brief, does not require us to change our conclusion. That case involved the attorney general’s decision not to certify ballot language for a referendum petition under R.C. 3519.01. Id . at 169- 170. Unlike the council in this case, the attorney general had a clear legal duty, arising under the statute, to certify the ballot language. No city official had a clear legal duty to approve the form of relators’ petition in May 2017. Relators could not have brought a valid declaratory-judgment action
based on the city attorney’s legal determination. A declaratory-judgment action
requires, among other things, the existence of a real controversy between adverse
parties.
Fairview Gen. Hosp. v. Fletcher
,
assert their rights arose when the city council passed an ordinance rejecting the petition to place the proposed charter amendments on the ballot on February 26. The council members do not argue that the lapse of time between that event and the filing of this action—just seven days—was unreasonable. We hold, therefore, that relators’ claim is not barred under the doctrine of laches.
B. Charter amendments A municipality may adopt a charter for local self-government upon
approval of its electors. Ohio Constitution, Article XVIII, Sections 7 and 8. Once adopted, a charter may be amended only with the electors’ approval. Ohio Constitution, Article XVIII, Section 9. One way for a proposed charter amendment to reach the ballot is for at least 10 percent of the electors who voted in the most recent general municipal election to sign a petition calling for submission of the proposal. Ohio Constitution, Article XVIII, Sections 9 and 14. When a sufficient number of electors sign the petition, the municipality’s legislative authority, by ordinance, shall submit the proposal to the electorate. Ohio Constitution, Article XVIII, Sections 8 and 9. Columbus’s charter prescribes additional rules for proposing a charter
amendment by petition.
See Morris v. Macedonia City Council
,
begins with the formation of a “petition committee,” consisting of five electors, that “represent[s] the petitioners in all matters relating to” the petition. Columbus Charter 42-3. Before circulating a petition for signatures, the petition committee must file a certified copy of the petition with the city clerk. Columbus Charter 42-4. The city clerk must “forward the certified copy of the petition forthwith to the city attorney and the members of council,” at which point “[t]he city attorney shall determine if the petition addresses a single subject and meets the requirements as to form.” Columbus Charter 42-5. The city attorney is required to report his findings to the city clerk and the members of council, id ., but the charter does not require the city clerk, the city attorney, or the council to approve the form of the petition before it may be circulated for signatures. Once signatures have been obtained, the part-petitions must be filed
with the city clerk. Columbus Charter 42-7. The city clerk forwards the petition to the elections authority for validation of signatures and to the city attorney “to advise on the legal sufficiency of the petition, based upon any applicable local, state or federal laws, rules or regulations.” Columbus Charter 42-9. When the city clerk receives the elections authority’s report and the city attorney’s findings, she must forward them to the city council. Id . The council then, by ordinance, must either approve or reject the petition to place the proposed charter amendment on the ballot. Columbus Charter 42-11, 45, and 45-1.
1. Claim against the council members To prevail in this mandamus case, relators must prove, by clear and
convincing evidence, that they have a clear legal right to have their proposed charter
amendment placed on the May 8 ballot, that the council members are under a clear
legal duty to provide that relief, and that relators have no adequate remedy in the
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ordinary course of the law.
Linnabary
,
charter shall be submitted by the council forthwith upon a petition signed by electors of the city equal to not less than ten percent of the total vote cast at the last preceding regular municipal election.” Columbus Charter 45. It further provides:
Upon receipt of the report regarding the validation of signatures, the city clerk shall read a summary of the same into the record. The council shall forthwith determine the sufficiency of the petition. Should the council find such petition sufficient, it shall forthwith by ordinance provide for the submission of such proposed charter amendment to a vote of the electors of the city.
Columbus Charter 45-1. Therefore, the council’s legal duty to approve the petition to place the proposed charter amendments on the ballot is clear, but the duty arises only if it finds that relators’ petition is “sufficient.” The city council found that the petition was not sufficient for one
reason—because it violates the one-proposal rule for amending the charter amendment by petition. Columbus Charter 42-2(d) provides: “A petition may only contain one proposal, which shall not address multiple or unrelated subject matters * * *.” Based on the arguments presented by the parties, the only question before us is whether council correctly determined that the proposed charter amendment addresses multiple or unrelated subject matters.
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{¶ 27}
“In construing charter provisions, we apply ‘general laws regarding
statutory interpretation, including construing charter language according to its
ordinary and common usage.’ ”
State ex rel. Paluch v. Zita
,
consideration.” Black’s Law Dictionary 1652 (10th Ed.2014). And the phrase “subject matter” is modified in the disjunctive by the words “multiple” and “unrelated.” Columbus Charter 42-2(d). The common meaning of multiple is more than one. “Unrelated” can be defined as “discrete, disjoined, [or] separate.” Webster’s Third New International Dictionary 2507 (2002). The title of relators’ proposed city-charter amendment begins, “To
enact electoral system and related administrative changes to Cols. City Council * * *.” The 11 proposed amendments address three distinct “subject matters,” including changing council’s composition as a body (i.e., adding seats and introducing districts), changing its administrative support (i.e., staffing limits), and changing its selection (i.e., campaign finance and public-access television).
11 *12 The proposed charter amendments are related to the number of
members serving on the city council, and whether those members represent the city at large or by district relate to the composition of the council as a body. However, these provisions, which change the composition of the council body, are not related to a limit on the number of employees hired by the council, because the employees do not serve as members of the council. Similarly, campaign reforms—namely, campaign-contribution limits and broadcast time on public-access TV during a campaign—affect candidates for the council, not the composition of the council body or the council employees. Moreover, campaign reforms may also affect candidates for the city council who will never be elected to serve on the council body, so these provisions do not relate to the composition of the council body or the council’s employees. Therefore, construing the plain and unambiguous language of the charter, the proposed city-charter amendments are “multiple” and “unrelated.” Columbus Charter 42-2(d). Contrary to relators’ arguments that the proposed city-charter
amendments satisfy Columbus Charter 42-2(d) because they “have a commonality or unity of purpose,” the language of the Columbus City Charter requires that a proposal “shall not address multiple or unrelated subject matters or questions of law.” Columbus Charter 42-2(d). To accept relators’ argument, this court would have to ignore or replace the coordinating conjunction “or” in the phrase “multiple or unrelated subject matters.” Id . However, “[i]n matters of construction, it is the duty of this court to give effect to the words used, not to delete words used or to insert words not used .” (Emphasis added.) Cleveland Elec. Illum. Co. v. Cleveland , 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus. The word “or” in Columbus Charter 42-2(d) cannot be read as “and.” The proposed city-charter amendment violates the limiting language of the one- proposal rule for two independent reasons. Therefore, relators’ petition is
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insufficient on two different grounds and the council had no clear legal to place relators’ petition for a charter amendment on the ballot.
2. Claim against the board of elections
To prevail against the board of elections, relators must prove that
they have a clear legal right to have their proposed charter amendment placed on
the May 8 ballot and that the board has a clear legal duty to provide that relief.
Linnabary
,
because relators did not name the Fairfield County Board of Elections and the Delaware County Board of Elections as respondents. The city of Columbus, the council members point out, extends into those counties as well. Because we reject relators’ claim against the Franklin County Board of Elections, there is no need for us to address relators’ alleged failure to name all necessary respondents.
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V. Conclusion Relators’ petition is insufficient because it does not comply with the
plain and unambiguous language of the one-proposal rule in Columbus Charter 42- 2(d). Therefore, the Columbus city council has no clear legal duty to place relators’ petition for charter amendment on the ballot. The Franklin County Board of Elections has no clear legal duty to place the proposed charter amendment on the ballot because the city council had not passed an ordinance approving the placement of the amendment on the ballot. For these reasons, the writs of mandamus are denied.
Motions granted and writs denied.
O’D ONNELL and D E G ENARO , JJ., concur.
F ISCHER , J., concurs in judgment only, with an opinion.
O’C ONNOR , C.J., and F RENCH and D E W INE , JJ., concur in judgment in part and dissent in part, and would grant the petition in part and grant a writ of mandamus ordering the Columbus City Council to submit Relators’ proposed amendment to the Columbus City Charter for a vote of the electors in the May 8, 2018 Primary Election.
_________________
F ISCHER , J., concurring in judgment only. Although I would employ a somewhat different analytical approach than that used in the lead opinion, I concur in the judgment denying the writs of mandamus. I write separately to note that relators Jonathan C. Beard, a member of the committee in support of an initiative petition, Everyday People for Positive Change, the committee itself, and five other members of the committee are not challenging the Columbus city council’s authority to disapprove the petition based on the council’s determination that the proposal violates the one-proposal rule. When considering a petition for a proposed charter amendment, a city council’s
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constitutional authority is circumscribed: its review “is limited to matters of form,
not substance.”
Morris v. Macedonia City Council
, 71 Ohio St.3d 52, 55, 641
N.E.2d 1075 (1994). “A city council may not engage in judicial or quasi-judicial
determinations * * *.”
Id
. Our prior cases have suggested that a possible violation
of similar one-subject rules is a question of substance, not form.
See State ex rel.
Kilby v. Summit Cty. Bd. of Elections
,
proposal from the ballot; instead, relators simply argue that council’s determination
was incorrect. I write to make clear that because relators have not challenged
council’s authority to decide the one-proposal question, this court has not decided
in this case whether council had that authority.
See Sizemore v. Smith
, 6 Ohio St.3d
330, 333,
_________________
Fitrakis & Gadell-Newton, L.L.C., and Robert J. Fitrakis, for relators. Zach Klein, Columbus City Attorney, and Richard N. Coglianese, Joshua T. Cox, and Charles P. Campisano, Assistant City Attorneys, for respondents Shannon G. Hardin, Michael Stinziano, Elizabeth Brown, Mitchell J. Brown, Jaiza Page, Emmanuel V. Remy, and Priscilla R. Tyson.
Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Harold J. Anderson III, Assistant Prosecuting Attorney, for respondent Franklin County Board of Elections.
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