THE STATE EX REL. COMMITTEE FOR THE REFERENDUM OF ORDINANCE NO. 3543-00 ET AL. v. WHITE, CLERK, ET AL.
No. 00-1457
Supreme Court of Ohio
September 29, 2000
90 Ohio St.3d 212 | 2000-Ohio-64
DOUGLAS, J.
[This opinion has been published in Ohio Official Reports at 90 Ohio St.3d 212.]
The same procedural requirements that must be followed to enact an ordinance must be followed to repeal an ordinance.
(No. 00-1457—Submitted September 8, 2000—Decided September 29, 2000.)
IN MANDAMUS.
{¶ 1} On March 6, 2000, respondent, City Council for the City of North Ridgeville, Ohio, enacted Ordinance No. 3543-99,1 which would rezone approximately two hundred acres bordering the city of Avon from R-1 (residence district) to PCD (planned community development). On that same date, city council adopted Resolution No. 894-2000, which granted preliminary approval for a proposed planned community development on the property to be known as Kingston Place.
{¶ 3} Following White‘s certification of relators’ referendum petition at the April 17 city council meeting, members of city council voted by a six-to-one margin to approve a motion to “rescind” Ordinance No. 3543-99. After the vote, a dispute arose concerning whether relators had sought a referendum on the correct ordinance because certain North Ridgeville officials indicated their belief that Resolution No. 894-2000 had automatically rezoned the property from residential to planned community development by city council‘s approval of the preliminary plan.
{¶ 4} On July 3, relators, the committee, its members, and other taxpaying residents of North Ridgeville, demanded, via letter, that the city law director bring a legal action to compel respondents White and city council to submit Ordinance No. 3543-99 to the Lorain County Board of Elections for placement on the November 7, 2000 election ballot. Relators contended in the July 3 demand letter that city council‘s April 17 vote to rescind Ordinance No. 3543-99 by passing a motion was ineffective because a new ordinance was required to repeal the ordinance.
{¶ 5} On July 6, the law director rejected relators’ demand. The law director indicated that city council had properly repealed the ordinance on April 17 when it voted to grant the motion to rescind. In addition, the city law director noted that, based on new information, relators’ referendum petition had contained an
{¶ 6} On August 11, 2000, relators filed this action for a writ of mandamus to compel respondents, North Ridgeville, its city council, and White, to submit Ordinance No. 3543-99 to the electorate by placing it on the November 7, 2000 election ballot. Respondents filed an answer, and the parties filed evidence and briefs pursuant to our expedited election schedule under S.Ct.Prac.R. X(9).
Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.
Eric H. Zagrans, North Ridgeville Law Director, for respondents.
DOUGLAS, J.
{¶ 7} Relators claim that they are entitled to a writ of mandamus to compel respondents to submit Ordinance No. 3543-99 to the electors for their consideration on the November 7 general election ballot. We agree, and for the reasons that follow we grant the writ requested by relators.
{¶ 8} Initially we must address respondents’ contention that relators’ cause of action is barred by the doctrine of laches. Respondents contend that relators failed to act with the diligence and promptness required in election cases and, further, that relators lack any justifiable excuse for failing to file this action sooner to contest the action taken by city council on April 17. We do not agree with respondents.
{¶ 9} It is well established that in election-related matters, extreme diligence and promptness are required. State ex rel. Schwartz v. Brown (1964), 176 Ohio St. 91, 26 O.O.2d 438, 197 N.E.2d 801. See, also, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 49, 600 N.E.2d 656, 659.
{¶ 10} In most instances, relators’ delay of nearly four months in filing this action from the time city council voted to rescind Ordinance No. 3543-99, would, without justifiable excuse, warrant dismissal of relators’ claims based on laches. However, we cannot ignore respondents’ part in causing this delay. Therefore, after a thorough review of the evidence before the court, we find, for the reasons that follow, that relators did act with the requisite diligence in filing this mandamus action.
{¶ 11} On March 6, 2000, two actions were taken by the North Ridgeville City Council relating to the rezoning at issue. Ordinance No. 3543-99 rezoned the affected area from R-1 residential district to the zoning classification of Planned Community Development.3 Resolution No. 894-2000 purported to grant preliminary approval for the proposed planned community development. In addition, however, other events surrounding the enactment of Ordinance No. 3543-99 and adoption of Resolution No. 894-2000 and the subsequent attempted repeal by city council of Ordinance No. 3543-99 are relevant to our consideration of this issue.
{¶ 13} At city council meetings subsequent to the enactment of Ordinance No. 3543-99 and the passage of Resolution No. 894-2000, on May 1, May 15, and June 5, the law director advised council that its adoption of Resolution No. 894-2000, which granted preliminary approval of the proposed planned community
{¶ 14} According to the law director, he informed council several times, prior to the votes enacting Ordinance No. 3543-99 and adopting Resolution No. 894-2000, that Resolution No. 894-2000 would automatically rezone the property in question. Contrary to these assertions of the law director, there is nothing in the record before this court that supports that contention. Even assuming, arguendo, that the law director did, in fact, convey that information to council, construing the evidence as a whole, we believe it is unlikely that members of city council understood the rezoning issue in the light that the director suggests.
{¶ 15} The need for the city law director to explain to city council the effect of its votes on Ordinance No. 3543-99 and Resolution No. 894-2000 after the passage of those items of legislation is testament to the confusion that existed among council members concerning this rezoning issue. We need not assess responsibility for the creation of the confusion. Suffice it to say that, undoubtedly, confusion also existed among those parties interested in voicing an opinion on the rezoning issue. This confusion, we believe, contributed at least in part to the relators’ delay in filing this action.
{¶ 16} In addition to the foregoing, in response to relators’ demand to compel respondents to submit Ordinance No. 3543-99 to the Lorain County Board of Elections for placement on the November 7 ballot, the law director raised an entirely new argument challenging the sufficiency of relators’ referendum petition. This contention, questioning the number of valid signatures, was raised more than two months after the clerk of city council certified that the referendum petition was legally sufficient. In addition, there was an attempt to introduce two new
{¶ 17} The cumulative effect of the respondents’ actions clearly contributed to relators’ delay in filing this action. Although laches is not an affirmative defense in an election matter, i.e., respondents are not required to raise the defense, laches is still an equitable doctrine. Respondents cannot be afforded the benefit of the doctrine when they come to the court having substantially contributed to the delay in question. Christman v. Christman (1960), 171 Ohio St. 152, 154, 12 O.O.2d 172, 173, 168 N.E.2d 153, 155. Respondents’ claims of delay and alleged prejudice cannot stand the light of day in view of the record before us. Accordingly, laches does not bar relators’ claims.
{¶ 18} The primary issue for our consideration is whether Section 13.2 of the North Ridgeville City Charter authorized city council to repeal Ordinance No. 3543-99 based only upon an oral motion without any underlying written document, to wit, an “ordinance.” After considering all of the relevant charter provisions, we conclude that the North Ridgeville City Charter required city council to enact a new ordinance to repeal Ordinance No. 3543-99.
{¶ 19} Section 3.12 (three point twelve) of the North Ridgeville City Charter provides that “[a]ll legislative action shall be by ordinance or resolution except when otherwise required by the Constitution or the laws of the state of Ohio.” Section 13.2 (thirteen point two) of the charter sets forth city council‘s
“Within thirty (30) days after the enactment by Council, of any ordinance or resolution which may be subject to a referendum under the laws of the State of Ohio, a petition signed by no less than ten percent (10%) of the total electors voting at the last preceding November election, may be filed with Council * * * by personally handing said petition to the Clerk of Council, requesting the ordinance or resolution be repealed or submitted to the vote of the electors. When said petition is filed, the Clerk of Council, shall within fourteen (14) days ascertain the sufficiency of the petition, and if found sufficient, the Council shall, within thirty (30) days after sufficiency has been established, reconsider such ordinance or resolution. If Council fails to repeal said ordinance or resolution within such thirty (30) day period, the Council shall submit it to a vote of the electors at the next regular election occurring more than seventy-five (75) days after the filing of such petition. If such petition is signed by at least twenty percent (20%) of such electors, the date of the election may be fixed therein, which may be a special election to be held at any time more than seventy-five (75) days after the filing of such petition.”
{¶ 20} Relators assert that under Section 3.12 of the charter, which prescribes general procedure for municipal legislation, city council, if it desired to repeal Ordinance No. 3543-99, had to enact a new ordinance to repeal Ordinance No. 3543-99 and that that action had to be taken by city council within thirty days of the clerk‘s determination of sufficiency. Since no new ordinance was enacted, relators contend that city council‘s April 17 vote to rescind Ordinance No. 3543-99 was ineffective. As a consequence, the referendum on the ordinance must, relators contend, be voted on at the November 7 general election. We agree.
{¶ 21} Relators correctly observe that a new ordinance is generally required to expressly repeal an existing ordinance. Reiff v. Hamilton City Council (1972), 32 Ohio App.2d 224, 225, 61 O.O.2d 248, 249, 289 N.E.2d 358, 359; see, also,
{¶ 22} Nevertheless, respondents urge this court to find that city council was not required to enact a new ordinance to repeal Ordinance No. 3543-99, but instead was authorized, pursuant to Section 13.2, to repeal the ordinance simply by passing a motion to rescind. However, the language of Section 13.2 simply does not support respondents’ position. Nowhere in Section 13.2 is city council authorized to repeal an ordinance without enacting a new ordinance. Section 13.2 simply provides the mechanism for challenging a legislative enactment of city council by referendum. Contrary to the respondents’ assertions, Section 13.2 does not authorize, in contravention of Section 3.12, repeal of an ordinance or resolution simply by passing a motion to rescind.
{¶ 23} Further, we reject respondents’ contention that it would be impractical and render Section 13.2 nugatory if Section 3.12 and other general charter provisions required that city council enact a new ordinance in order to repeal an existing zoning ordinance. Respondents ignore the clear language of Sections 3.12 and 13.2 and misconstrue the purpose of other charter provisions.
{¶ 24} Respondents’ assertion that Section 3.12 must yield to the special thirty-day-repeal provision of Section 13.2 in order to avoid going through the entire legislative process a second time is misguided. In proposing an ordinance to repeal a newly enacted zoning ordinance, there would be no need, as respondents suggest, to hold another public hearing (Section 9.1), submit a proposed zoning ordinance to the planning commission (Section 8.8), or comply with the three-
{¶ 25} The North Ridgeville City Charter speaks to the question before the court, and, consequently, it is a closed issue. The charter is the preeminent authority in this matter, and it is clear and unequivocal. Moreover, upon reflection, would anyone seriously contend that municipal governmental bodies should be able to repeal sections of their city code simply by using the vehicle of a motion and voice vote of the city council? The mischief that that could entail should be obvious even to a casual observer. Such a procedure is frightening to contemplate and would be questionable at best and dangerous at its worst. Therefore, we find that city council‘s April 17 action attempting to repeal Ordinance No. 3543-99 was not authorized and that, pursuant to Sections 3.12 and 13.2 of the North Ridgeville Charter, city council was required to enact a new ordinance to repeal the ordinance.
{¶ 26} Accordingly, we hold that the same procedural requirements that must be followed to enact an ordinance must be followed to repeal an ordinance. We therefore grant relators’ requested writ of mandamus and order respondents to submit Ordinance No. 3543-99 to the electors of the city of North Ridgeville at the November 7, 2000 general election.
Writ granted.
RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., PFEIFER and COOK, JJ., dissent.
THE STATE EX REL. COMMITTEE FOR THE REFERENDUM OF ORDINANCE NO. 3543-00 ET AL. v. WHITE, CLERK, ET AL.
No. 00-1457
Supreme Court of Ohio
September 29, 2000
PFEIFER, J.
{¶ 27} Relators have not established a clear legal right to have the ordinance submitted to the electorate or a corresponding clear legal duty on the part of respondents to do so.
{¶ 28} Section 13.2 of the North Ridgeville Charter specifies city council‘s authority after its clerk determines that a referendum petition is sufficient:
“Within thirty (30) days after the enactment by Council, of any ordinance or resolution which may be subject to a referendum under the laws of the State of Ohio, a petition signed by no less than ten percent (10%) of the total electors voting at the last preceding November election, may be filed with Council * * * by personally handing said petition to the Clerk of Council, requesting the ordinance or resolution be repealed or submitted to the vote of the electors. When said petition is filed, the Clerk of Council, shall within fourteen (14) days ascertain the sufficiency of the petition, and if found sufficient, the Council shall, within thirty (30) days after sufficiency has been established, reconsider such ordinance or resolution. If Council fails to repeal said ordinance or resolution within such thirty (30) day period, the Council shall submit it to a vote of the electors at the next regular election occurring more than seventy-five (75) days after the filing of such petition. If such petition is signed by at least twenty percent (20%) of such electors, the date of the election may be fixed therein, which may be a special election to be held at any time more than seventy-five (75) days after the filing of such petition.” (Emphasis added.)
{¶ 29} Under Section 13.2 of the charter, once White determined on April 17 that the referendum petition was legally sufficient, the city council had thirty days to reconsider Ordinance No. 3543-99. If, during that period, council failed to repeal the ordinance, it had a duty to submit it to the electors at the November 7 election. On the same date that its clerk concluded that the petition was sufficient, the city council voted to rescind the ordinance.
{¶ 31} The general rule that, absent legislation to the contrary, a new ordinance is required to expressly repeal an existing ordinance is inapplicable here. Without any provision of the Ohio Constitution regarding the interpretation of the North Ridgeville Charter, the court may apply general interpretative rules concerning statutory construction. See State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections (1993), 67 Ohio St.3d 597, 600, 622 N.E.2d 329, 331; see, also, State ex rel. Huebner v. W. Jefferson Village Council (1995), 72 Ohio St.3d 589, 592, 651 N.E.2d 1001, 1003, reconsideration granted on other grounds (1995), 75 Ohio St.3d 381, 662 N.E.2d 339. Under one such general rule, codified at
{¶ 32} Section 13.2 is a special provision that specifies city council‘s authority following a determination by its clerk that a referendum petition is sufficient, and the charter does not evidence any manifest intention that Section 3.12 prevail over Section 13.2 when council repeals an ordinance within the thirty-day period following its clerk‘s determination of sufficiency.
{¶ 33} In addition, the special thirty-day repeal provision of Section 13.2 would be rendered nugatory if Section 3.12 and other general charter provisions
{¶ 34} As relators themselves argue, “[t]o construe or allow the general [charter] provisions to prevail over these special provisions [of Section 13.2 of the charter] would completely frustrate the crucial timing interests of these provision[s].” In addition, relators further specifically assert that ”Charter Provision 13.2, a special provision, governing the enactment of an ordinance repealing a referendum ordinance, shall be an exception to the general provisions of the Charter 8.8, 3.12, 3.13, [and] 9.1 * * *.” (Emphasis added.) Like the three-reading requirement of Section 3.12 and the remaining requirements of Sections 3.13, 8.8, and 9.1 of the charter, the requirement of Section 3.12 that legislative action be by ordinance is also a general provision that must yield to the special thirty-day repeal provision of Section 13.2. This gives effect to Section 13.2 and
{¶ 35} Therefore, under Section 13.2 of the charter, the city council was authorized to repeal Ordinance No. 3543-99 by vote on a motion, and council did so in a timely manner on April 17. Because council repealed the ordinance that relators sought to be placed on the November 7 ballot, respondents have no duty to submit the ordinance to North Ridgeville electors at the November 7 election. Section 13.2, North Ridgeville Charter.
{¶ 36} In addition, relators received precisely what they requested in their letter attached to their referendum petition, i.e., either the repeal of the ordinance or its submission to the electors. In fact, relators’ counsel initially agreed that the city council‘s April 17 action repealed the ordinance, and one of relators agreed that when city council repealed the ordinance, relators got what they desired. A writ of mandamus will not issue to compel an act that has already been performed. State ex rel. Lee v. Montgomery (2000), 88 Ohio St.3d 233, 237, 724 N.E.2d 1148, 1151.
MOYER, C.J., concurs in the foregoing dissenting opinion.
THE STATE EX REL. COMMITTEE FOR THE REFERENDUM OF ORDINANCE NO. 3543-00 ET AL. v. WHITE, CLERK, ET AL.
No. 00-1457
Supreme Court of Ohio
September 29, 2000
COOK, J.
{¶ 37} Because I find that the doctrine of laches should bar relators’ claims, I would not reach the merits of the instant case. Accordingly, I respectfully dissent.
{¶ 38} As the majority correctly notes, when relators have failed to exhibit the required diligence and promptness in election-related cases, this court has applied laches and denied extraordinary relief. See, generally, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48, 600 N.E.2d 656, 659. For the following reasons, I conclude that application of laches is warranted under the facts of this case.
{¶ 39} First, relators bear the burden of establishing that they acted with the requisite diligence in filing their claim. State ex rel. Manos v. Delaware Cty. Bd. of Elections (1998), 83 Ohio St.3d 562, 564, 701 N.E.2d 371, 373. They have failed to meet this burden. We have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case. Paschal v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 141, 656 N.E.2d 1276. Here, relators failed to file this action until nearly four months after the April 17, 2000 rescission of the ordinance, even though they knew or should have known of the basis of their present claim. This is not a case in which prejudice to respondents’ ability to prepare and defend against relators’ claims would have occurred “even ‘under the best of circumstances.‘” State ex rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 494, 700 N.E.2d 1234, 1237, quoting State ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883, 886. Rather, this is a case in which prejudice arose as a result of unjustified tardiness. Because relators delayed filing this action, they “made this case an expedited election matter under S.Ct.Prac.R. X(9), thereby restricting respondents’ time to prepare and defend against [relators‘] claims.” State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 186, 685 N.E.2d 507, 510.
{¶ 41} Second, by not applying laches, the majority opinion undermines the purpose of S.Ct.Prac.R. X(9), which is to “‘incorporate an expedited election schedule for the presentation of evidence and briefs in election cases filed in that time period to assist the court in resolving such cases promptly.‘” State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775, 777, quoting SuperAmerica, 80 Ohio St.3d at 187, 685 N.E.2d at 511. The purpose of the rule is not to provide a party with a strategic advantage; relators should not be able to delay filing an election case merely to restrict respondents’ time to gather evidence and file a merit brief. Indeed, after relators filed this case, they filed a motion for a protective order, complaining that respondents had given relators too little notice to depose them, although respondents had little time to obtain discovery in order to file evidence under the expedited schedule of S.Ct.Prac.R. X(9). Similar maneuvering has been labeled gamesmanship. See State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 113, 712 N.E.2d 696, 701; State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 636, 716 N.E.2d 704, 711.
{¶ 42} Third, the majority makes much of respondents’ conduct in asserting that a significant portion of relators’ delay was essentially caused by respondents. I disagree. Any minimal delay that might have been caused by the law director‘s inclusion of an additional ground of insufficiency of the referendum petition in his July 6 rejection of relators’ July 3 demand did not excuse relators’ failure to file this action between April 17 and July 6. Ryant Commt., 86 Ohio St.3d at 114, 712 N.E.2d at 702; Manos, 83 Ohio St.3d at 563, 701 N.E.2d at 372. In fact, relators’
{¶ 43} Relators erroneously cite nonelection cases to support their contention that the “equitable affirmative defense” of laches is inapplicable. But laches is not an affirmative defense in election cases; instead, as noted, the burden rests upon relators in election cases to establish that they instituted their action with the required diligence and promptness. Ascani, 83 Ohio St.3d at 494, 700 N.E.2d at 1237; Manos, 83 Ohio St.3d at 564, 701 N.E.2d at 373.
{¶ 44} I would therefore deny the writ.
MOYER, C.J., concurs in the foregoing dissenting opinion.