80 Ohio St. 3d 1 | Ohio | 1997
Motions to Dismiss
Aeh moves to dismiss the mandamus claims relating to Second Ward Council Member Greg Bauer and Sixth Ward Council Member Orin Campbell. Bauer and Campbell have resigned their council positions. These resignations moot relators’ claims concerning their petitions requesting Bauer’s and Campbell’s removal from city council. The issues raised by these claims are not capable of repetition, yet evading review. State ex rel. Fenley v. Kyger (1995), 72 Ohio St.3d 164, 165, 648 N.E.2d 493, 494. Relators also do not oppose Aeh’s dismissal motions.
Therefore, we grant Aeh’s motions and dismiss the claims concerning the petitions requesting removal of Bauer and Campbell.
Merits: First and Fourth Ward Council Members
Relators assert in their sole proposition of law that Aeh has a clear legal duty to comply with R.C. 3501.38. Aeh counters that the provisions set forth in the Portsmouth Charter governing recall petitions are exclusive and controlling.
Sections 150,151, and 152 of the Portsmouth Charter provide:
“SECTION 150. RECALL PETITION PAPERS.
“Any elective officer provided for by this Charter may be removed from office by recall. The procedure to effect such a removal shall be as follows:
“Any elector of the City may make and file with the City Clerk an affidavit stating the name of the officer whose removal is sought and the grounds alleged for such removal. * * * ”
“SECTION 151. FILING RECALL PETITION.
“SECTION 152. RECALL ELECTION ORDERED.
“If a recall petition, or amended petition, shall be certified by the City Clerk to be sufficient, he shall at once submit it to the Council with his certificate to that effect and shall notify the officer whose removal is sought of such action. If the officer whose removal is sought does not resign within five (5) days after such notice the Council shall thereupon order and fix a day for holding a recall election. Any such election shall be held not less than forty (40) nor more than ninety (90) days after the expiration of the period of five (5) days last mentioned, and at the same time as any general, primary, or special election shall be held within such period; but, if no general, primary, or special election shall be held within such period, the Council shall order a special recall election to be held within the time aforesaid.”
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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“(H) Any signer of a petition may remove his signature therefrom at any time before the petition is filed in a public office by striking his name therefrom; no signature may be removed after the petition is filed in any public office.
“(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office.”
R.C. 3501.38(H) and (I) prohibit the removal of signatures from petitions after they are filed in any public office. See, e.g., State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 174-175, 602 N.E.2d 615, 621; State ex rel. Green v. Casey (1990), 51 Ohio St.3d 83, 85, 554 N.E.2d 1288, 1291; State ex rel. Jeffries v. Ryan (1969), 21 Ohio App.2d 241, 253, 50 O.O.2d 403, 410, 256 N.E.2d 716, 724.
Contrary to Aeh’s contentions, R.C. 3501.38(H) and (I) are applicable to the recall petitions filed with her. First, R.C. 3501.38 is incorporated by reference in
Aeh nevertheless contends that she was entitled to remove signatures from the recall petitions for various reasons. Aeh initially asserts she was entitled to remove the signatures based on the petition amendment procedure set forth in Section 29 of the Portsmouth Charter. Aeh claimed that she treated the signature withdrawal petitions as “amendments” to the original recall petitions. But the amendment procedure was inapplicable to Aeh’s determination, since she made no finding of insufficiency of the original petitions prior to considering the “amendments.” Section 29, Portsmouth Charter (“A[ ] * * * recall petition may be amended at any time within ten days after the making of a certificate of insufficiency by the City Clerk * * *.”); Section 151, Portsmouth Charter (“A recall petition, if insufficient as originally filed, may be amended as provided in this Charter.”). As noted by relators, the charter petition amendment procedure provides an opportunity for the petitioners to file additional signatures if the original petition does not contain a sufficient number of signatures of qualified electors. Section 29 does not expand the city clerk’s authority to determine the sufficiency of recall petitions by authorizing the removal of signatures from the original petitions in derogation of R.C. 3501.38(H) and (I).
First, R.C. 3501.38(H) and (I), as incorporated by the Portsmouth Charter, do not permit post-filing removal of signatures. Second, evidence of fraud, misrepresentation, or mistake would not have invalidated the recall petitions. There is no such exception to the requirements of R.C. 3501.38(H) and (I). See, also, Gem Dev. Co. v. Clymer (1963), 120 Ohio App. 189, 191, 28 O.O.2d 463, 464, 201 N.E.2d 721, 722 (Violation of R.C. 731.36 did not invalidate petitions because General Assembly imposes a fine, as the penalty for violating that provision.). Second, Aeh’s deposition testimony indicated that she did not base her removal of signatures on fraud, misrepresentation, or mistake. Third, the deposition testimony of Aeh and council members related to fraud, misrepresentation, or mistake was hearsay, which was specifically objected to by relators. See, e.g., Evid.R. 802; In re Coy (1993), 67 Ohio St.3d 215, 219, 616 N.E.2d 1105, 1108. Aeh did not present competent evidence supporting her assertions of fraud, misrepresentation, or mistake.
Aeh finally claims that she was entitled to remove signatures following the filing of recall petitions based on past practice. There is, however, no past practice exception to the requirements of R.C. 3501.38(H) and (I).
Therefore, Aeh had a clear legal duty under Sections 151 and 152 of the Portsmouth Charter to certify as sufficient the recall petitions relating to the First and Fourth Ward council members. The petitions had the requisite number of signatures to be sufficient. Aeh was not entitled to remove signatures from the petitions after filing. In addition, relators have established a clear legal right to this certification, and they have no adequate remedy in the ordinary course of law.
Based on the foregoing, we grant a writ of mandamus compelling Aeh to certify the recall petitions seeking the removal of First and Fourth Ward Council Members Sydnor and Kalb as sufficient and to notify these council members pursuant to Section 152 of the Portsmouth Charter. In addition, we grant relators’ request for attorney fees and order relators’ counsel to submit a bill and documentation in support of the request for attorney fees, in accordance with the guidelines set forth in DR 2-106.
Writ granted in part and cause dismissed in part.