THE STATE EX REL. FRITZ ET AL. v. TRUMBULL COUNTY BOARD OF ELECTIONS ET AL.
No. 2021-0641
SUPREME COURT OF OHIO
May 27, 2021
Slip Opinion No. 2021-Ohio-1828
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Fritz v. Trumbull Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-1828.]
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 prоmptly 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.
SLIP OPINION NO. 2021-OHIO-1828
THE STATE EX REL. FRITZ ET AL. v. TRUMBULL COUNTY BOARD OF ELECTIONS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Fritz v. Trumbull Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-1828.]
Prohibition and Mandamus—Elections—Action to prevent a special recall election from being held—
(No. 2021-0641—Submitted May 27, 2021—Decided May 27, 2021.)
IN PROHIBITION and MANDAMUS.
{¶ 1} In this expedited election case, relators A. Joseph Fritz, Kathleen M. King, and Sandra Breymaier seek a writ of prohibition to prevent respondents, the Trumbull County Board of Elections and its members, Mark Alberini, Arno Hill, Ronald Knight, and Diana Marchese (collectively, “the board”), from holding a June 1, 2021 special recall election on a measure to remove Breymaier from the city council of Newton Falls. Relators also request a writ of mandamus ordering the board to remove the recall election from the ballot.
{¶ 2} Relators are not entitled to a writ of рrohibition because the board did not exercise quasi-judicial authority. But we grant relators a writ of mandamus because the Newton Falls city council has not duly passed a motion to set the recall election for June 1.
I. Background
{¶ 3} Under the Newton Falls Charter, any member of the city council may be remоved by a recall vote of the city‘s electors. Newton Falls Charter, Article VII, Section 4. The recall process begins with a petition demanding removal of the city council member. To be valid, the petition must contain a sufficient number of signatures of Newton Falls electors and be filed with the сity clerk. Id. If the city clerk finds the petition sufficient, she must certify the petition to the council and deliver a copy of the certificate to the council member whose removal is sought. Id. If the council member does not resign within seven days after the clerk‘s delivery of the certificate, the council “shall thereupon fix a day for holding a recall election, not more than ninety (90) days after the date of such delivery.” Id.
{¶ 4} On or about April 8, 2021, a group of Newton Falls electors presented to King, as clerk of the city council, a petition to recall Breymaier, the council member
{¶ 5} On May 10, 2021, the city council convened a general meeting. At the time of the May 10 meeting, there were only four city council members present because Alberini had resigned a week earlier. A motion to schedule a special election for June 1, 2021, on Breymaier‘s recall was on the agenda. The council voted 2-1 in favor of the motion to set the recall-election date as June 1; Breymaier abstained due to a conflict of interest. Mayor Kenneth Kline, the presiding member of the council, declared that the motion had passed.1
{¶ 6} Fritz, the Newton Falls law director, disagreed with Mayor Kline‘s declaration. Fritz informed King that the motion had failed because it had not received a majority vote of the cоuncil members present at the meeting. King therefore did not deliver or transmit the motion to the board. However, Mayor Kline sent a letter to the board on May 13, informing it that the council had passed the motion and requesting that the board schedule an election on Breymaier‘s recall for June 1.
{¶ 7} Uрon learning of Mayor Kline‘s letter to the board, Fritz sent a written protest to legal counsel for the board that same day, objecting to the recall election on the basis that the council had not passed the motion by a majority vote. On May 14, the board convened a special session and voted to set the recall election to occur on June 1, with early voting beginning on May 18. The board did not provide notice to Fritz that it would be considering his protest on that day, nor did the board hold a formal hearing on Fritz‘s protest.
{¶ 8} Relators commenced this action on May 17, seeking writs of prohibition and mandamus to prevent the board from holding the recall election and ordering the board to remove the recall measure from the June 1 ballot. We set an expedited schedule for the parties to submit evidence and file briefs. ___ Ohio St.3d ___, 2021-Ohio-1704, ___ N.E.3d ___. The matter is fully briefed and ripe for decision.
II. Analysis
A. Writ of Prohibition
{¶ 9} To obtain a writ of prohibition, relators must prove that the board exercised quasi-judicial power, that it lacked the authority to do so, and that relators lack an adequate remedy in the ordinary course of the law. See State ex rel. Keith v. Lawrence Cty. Bd. of Elections, 159 Ohio St.3d 128, 2019-Ohio-4766, 149 N.E.3d 449, ¶ 5. Quasi-judicial power denotes the authority to hear and determine controversies “that require a hearing resembling a judicial trial.” State ex rel. Wright v. Ohio Bur. of Motor Vehicles, 87 Ohio St.3d 184, 186, 718 N.E.2d 908 (1999); see also State ex rel. Miller v. Hamilton Cty. Bd. of Elections, ___ Ohio St.3d ___, 2021-Ohio-831, ___ N.E.3d ___, ¶ 21-27.
{¶ 10} The board did not exercise quasi-judicial power when it decided, over Fritz‘s protest, to set the recall election fоr June 1. Relators cite
B. Writ of Mandamus
{¶ 11} Relators also ask for a writ of mandаmus ordering the board to remove the recall measure from the June 1 ballot. To be entitled to a writ of mandamus, relators must establish by clear and convincing evidence (1) a clear legal right to have the board remove the recall measure from the ballot, (2) a clear legal duty on the part of the board to do so, and (3) the lack of an adequate remedy in the ordinary course of law. See State ex rel. Nauth v. Dirham, 161 Ohio St.3d 365, 2020-Ohio-4208, 163 N.E.3d 526, ¶ 11. Because of the proximity of the election scheduled for June 1, relators lack an adequate remedy in the ordinary course of law. See State ex rel. Tam O‘Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 15.
{¶ 12} As to the first two elements, relators must show that the board engaged in fraud, corruption, an abuse of discretion, or a clear disregard of applicable law. State ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections, 93 Ohio St.3d 529, 532, 757 N.E.2d 314 (2001). In this case, the issue beforе us is whether the board clearly disregarded applicable law in deciding to conduct the special recall election on June 1. Extraordinary relief in mandamus is appropriate to keep a measure from the ballot when there is a “failure to comply with statutory ballot-aсcess requirements.” Cornerstone Developers at ¶ 22.
{¶ 13} When a “sufficient” recall petition is filed with the city clerk and the officer whose removal is sought does not resign, the Newton Falls Charter requires the council to act affirmatively to set the date of the recall election. Specifically, Article VII, Section 4 states that council “shall” fix the date for a recall election to occur within 90 days of the date the recall petition was delivered to the officer sought to be removed. The question in this case is whether a majority of the council voted to set the recall election to take place on June 1.
{¶ 14} Article III, Section 9 of the Newton Falls Charter generally provides that the council shall exercise its powers “by a majority vote.” Relators argue that a “majority vote” means a majority of the council members who are present at the meeting. Accordingly, relators contend that the May 10 vote to approve the June 1 recall election was not a majority vote because only two of the four council members voted in favor of the motion. The board disagrees, arguing that “a majority vote” under the Newton Falls Charter means a
{¶ 15} Relators are correct.
{¶ 16}
{¶ 17} This court construes municipal charters to give effect to all separate provisions and, whenever possible, to harmonize them with statutory provisions. See, e.g., State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 31; State ex rel. Commt. for the Proposed Ordinance to Repeal Ordinance No. 146-02, W. End Blight Designation v. Lakewood, 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, ¶ 20; State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 477, 764 N.E.2d 971 (2002). Therefore, “[i]n the absence of express language in a charter demonstrating a conflict with a statute, it is the duty of courts to harmonize the provisions of the charter and statutes relating to the same matter.” State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections, 86 Ohio St.3d 107, 112, 712 N.E.2d 696 (1999); see also N. Olmsted, 93 Ohio St.3d at 533; Finkbeiner at ¶ 31.
{¶ 18} The Newton Falls Charter contains no express language that conflicts with
{¶ 19} In arguing that only the voting members should be counted for purposes of determining a majority, the board relies on State ex rel. Shinnich v. Green, 37 Ohio St. 227 (1881), for the prоposition that those who abstain from voting are deemed to have acquiesced to the action taken by
{¶ 20} Shinnich, however, does not provide the applicable rule in this case. Even if we were willing to apply Shinnich outside the context of a municipal legislative authority‘s vote on an organizational matter, the language of
{¶ 21} For these reasons, the Newton Falls council did not pass the motion to fix June 1, 2021, as the date of the recall election. The motion failed for want of one vote. The board has a legal duty to reject a measure that does not comply with ballot-access requirements and to prohibit its placement on the ballot. See State ex rel. Burech v. Belmont Cty. Bd. of Elections, 19 Ohio St.3d 154, 155, 484 N.E.2d 153 (1985). Accordingly, we grant relators a writ of mandamus ordering the board to remove thе issue of Breymaier‘s recall from the June 1, 2021 special-election ballot.
Writ of mandamus granted and writ of prohibition denied.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
BRUNNER, J., not participating.
Calfee, Halter & Griswold, L.L.P., James F. Lang, Nicholas A. Bonaminio, and Brandon E. Brown, for relators.
Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Frank H. Scialdone; and Dennis Watkins, Trumbull County Prosecuting Attorney, for respondents.