THE STATE EX REL. HARRIS ET AL. v. RUBINO, FIN. DIR., ET AL.
No. 2018-1129
Supreme Court of Ohio
September 7, 2018
Slip Opinion No. 2018-Ohio-3609
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Harris v. Rubino, Slip Opinion No. 2018-Ohio-3609.]
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.
SLIP OPINION NO. 2018-OHIO-3609
Mandamus—Writ of mandamus sought to compel city finance director or city council and county board of elections to place zoning ordinance proposed by initiative petition on the November 2018 ballot—City charter does not clearly and expressly conflict with the requirements of
(No. 2018-1129—Submitted August 30, 2018—Decided September 7, 2018.)
IN MANDAMUS.
I. INTRODUCTION
{¶ 1} This expedited elections case involves an initiative petition proposing an ordinance that would amend the city of Solon‘s zoning map to create the Kerem Lake Mixed-Use District. Relators, Mark A. Harris, Richard N. Haig, Jacqueline L. Kogan, Cheryl L. Davis, and Travis Lane Maggard, are the five members of the petition committee. The committee seeks a writ of mandamus (1) ordering respondent Solon Director of Finance Matt Rubino (or in the alternative, respondent Solon city council) to certify the sufficiency and validity of the initiative petition to respondent Cuyahoga County Board of Elections and (2) ordering the board to place the proposed ordinance on the November 6, 2018 ballot. The committee asserts these claims as a taxpayer action under
{¶ 2} We grant a writ of mandamus ordering Rubino to certify the sufficiency and validity of the initiative petition to the board of elections for placement on the Novembеr 2018 ballot. We also grant the motion to establish the amount of the security for costs, waive the provision requiring relators to pay security for costs, and grant the committee its costs and reasonable attorney fees.
II. FACTS
A. The Petition
{¶ 3} The initiative petition seeks to submit to the voters of Solon a proposed ordinance amending the city‘s zoning map to create the Kerem Lake Mixed-Use District. The ordinance would change the zoning classification of a 102-acre tract that includes a 20-acre lake. The area is currently zoned for single-family houses on one-acre lots. If created, the mixed-use district would permit development of the property to include single- and multi-family dwellings, a
{¶ 4} On June 29, 2018, prior to circulating the petition, the committee submitted a certified copy of the proposed ordinance to both Rubino and the city council. The committee filed the circulated petition with Rubino on July 12.
{¶ 5} Rubino held the petition for ten days in accordance with
{¶ 6} Neither Rubino nor the city council met this deadline. Article XIV of the Solon City Charter provides that an ordinance proposed by initiative petition changing a zoning classification or permitted use “shall not become effective after the passage thereof, until Council submits such ordinance * * * to the electorate at
{¶ 7} Rubino and the city council took the position that under Article XIV of the charter, the city council—not Rubino—had the duty to certify the petition to the board, that it could do so only by passing an ordinance, and that the charter required that the ordinance be read by title at three separate council meеtings. The city council prepared an ordinance for this purpose containing “emergency” language. That language, if adopted, would have waived the three-reading requirement and made the ordinance effective immediately on passage. The city council held a regular meeting on August 6, at which the ordinance was read by title for the first time. The council did not adopt the “emergency” language or pass the ordinance.
B. The Taxpayer Demand
{¶ 8} During the city council‘s July 2 meeting—prior to the committee‘s filing of the circulated petition—the councilman for the ward that includes the Kerem Lake project stated his desire that the eventual ordinance certifying the validity and sufficiency of the petition to the board be given three readings. On July 20, the committee‘s counsel sent a taxpayer-demand letter to the city‘s law director, arguing that three readings of a certification ordinance by the city council were not necessary and that Rubino, or in the alternative, the council, had a duty to certify the validity and sufficiency of the petition to the board by August 8. The committee requested, under
{¶ 9} To resolve this case, we must determine whether
{¶ 10} We conclude that the charter provision does not apply and that
A. Mandamus Standard
{¶ 11} To be entitled to a writ of mandamus, the committee must establish a clear legal right to the requested relief, a clear legal duty on the part of a respondent to grant such relief, and the lack of an adequate remedy in the ordinary course of the law. See State ex rel. Commt. for Charter Amendment Petition v. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 17. Mandamus is appropriate to correct a public official‘s or public body‘s abuse of discretion. State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 27.
R.C. 731.28 ?
{¶ 12} The key question in determining the legal rights and duties of the parties in this case is whether
1. Applicable Law
{¶ 13}
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. Such initiative petition must contain the signatures of not less than ten per cent of the number of electors who voted for governor at the most recent general election for the office of governor in the municipal corporation.
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 corporatiоn 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 ninety days after the auditor or clerk certifies the sufficiency and validity of the initiative petition to the board of elections. No ordinance or other measure proposed by initiative petition and approved by a majority of the electors voting upon the measure in such municipal corporаtion shall be subject to the veto of the mayor.
(Emphasis added.)
{¶ 14} The statute thus sets out the following procedure: (1) petitioners submit the municipal initiative petition to the city auditor, (2) the auditor holds the petition for 10 days, (3) the auditor transmits the petition to the board of elections to determine the number of valid signatures, (4) the board certifies the number of valid signatures and returns the petition to the auditor, (5) the auditor certifies to the board the validity and sufficiency of the petition, and (6) the board submits the
{¶ 15} Municipalities, however, have “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
{¶ 16}
{¶ 17} As this court has also stated, “[a]lthough the Constitution gives municipalities the authority to adopt home rule, local self-government, the exercise of those powers by the adoption of a charter should clearly and expressly state the areas where the municipality intends to supersede and override general state statutes.” (Emphasis added.) State ex rel. Bardo v. Lyndhurst, 37 Ohio St.3d 106, 110, 524 N.E.2d 447 (1988). A municipal charter provision will therefore prevail over a parallel state statute “only where the conflict appears by the express terms of the charter and not by mere inference.” Id. at 109; accord Ditmars at 475.
{¶ 19} Finally, when construing city charters, we apply general rules of statutory interpretation. State ex rel. Beard v. Hardin, __ Ohio St.3d __, 2018-Ohio-1286, __ N.E.3d __, ¶ 27. However, referring to the
2. Solon‘s Charter
{¶ 20} Solon‘s charter states that ordinances may be proposed by initiative “in the manner now or hereafter provided by the Constitution or the laws of Ohio.” Solon City Charter, Article IX, Section 1(d). This provision was amended in 1988 to create an exception for initiative proposals that would change a zoning district or zoning use. According to the amendment, those proposals “shall be governed by Article XIV” of the charter. Id.
Any ordinance, resolution or other action, whether legislative or proposed by initiative petition, effecting a change in the zoning classification or district of any property within the City of Solon, Ohio, shall not become effective after the passage thereof, until Council submits such ordinance, resolution or other action to the electorate at a regularly scheduled election, occurring more than 90 days after the passage of the ordinance, resolution or other action and such ordinance, resolution or other action is approved by a majority of the electors voting thereon, in this Municipality and in each ward in which the change is applicable to property in the ward.
Article XIV, Section 2 is identical to Section 1 except that it replaces the words “effecting a change in the zoning classification or district of any property within the City of Solon” with the words “effecting a change in the uses permitted in a zoning use classification or district of the City of Solon.”
3. No Clear and Express Conflict
{¶ 22} These provisions of the Solon city charter do not clearly and expressly conflict with
{¶ 23} Likewise, the provisions in Article XIV of the charter do not set forth a procedure for certifying the petition to the board of elections for placement on the ballot. Sections 1 and 2 say, “Any ordinance * * * proposed by initiative petition, effecting a change in the [zoning classification or uses permitted] * * * shall not become effective after the passage thereof, until Council submits such ordinance * * * to the electorate at a regularly scheduled election, occurring more than 90 days after the passage of the ordinance * * *.” (Emphasis added.)
{¶ 24} These provisions make no mention of an ordinance (or any other action by the city council) certifying an initiative petition to the board of elections (a “certification ordinance“). Rather, they refer to any ordinance that changes zoning or a permitted use, whether it is one enacted by the legislative body—city council—or it is one proposed by initiative petition, that is, an ordinance that would be enacted if the voters approve it in the election (the “proposed ordinance“). The phrases “passage thereof” and “Council submits such ordinance” grammatically refer to the ordinance effecting a change in the zoning classification or the uses permitted, i.e., in the initiative context, the proposed ordinance, not a separate, otherwise unmentioned certification ordinance.
{¶ 25} Although it is not clear whether the term “passage” means pаssage by the city council or passage by the voters in an election, neither interpretation of the term creates a requirement that the city council certify an initiative petition to the board of elections—in fact, neither interpretation makes sense in the context of initiatives. The city council does not pass an ordinance proposed by initiative petition, effecting a change in zoning or permitted use, so “passage thereof” cannot refer to passage by the city council in regard to an initiative petition. If “passage thereof” refers to passage by the voters, the submission of “such ordinance” to the electors after “passage thereof” would, as the committee argues and the city denies,
{¶ 26} Conspicuously, the city‘s brief does not explain how the words of the Article XIV provisions support its position. Rather, it sets out the full text of the provisions and then shifts immediately to a discussion of its practice since the 1988 charter amendments. But the city cites no authority stating that its past practice is entitled to deference. And such deference would be particularly unwarranted here because the right to initiative belongs to the people, not to the municipality as an entity. See
{¶ 27} To conclude that Article XIV of the charter provides that the city council is to certify initiative petitions to the board of elections would require us to add to or delete words from the charter in order to turn references to a proposed ordinance into references to a certification ordinance or to ignore the reference to “after the passage thereof” with respect to an ordinance proposed by initiative petition. This would be contrary to the principles of statutory construction. “A court construing a provision in a city charter, statute, contract or other writing may not ignore the existence of any word or phrase.” Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 53, 524 N.E.2d 441 (1988).
{¶ 28} We must likewise avoid reaching a conclusion premised on an inference of the provisions’ possible intent rather than on the express terms of the charter. See Bardo, 37 Ohio St.3d at 109. The terms of the charter reflect the somewhat inartful insertion of a clause regarding initiative petitions into what had been solely automatic-referendum provisions. The resulting provisions do not clearly and expressly conflict with
4. Constitutional Claims
{¶ 30} We do not reach the committee‘s arguments that Article XIV of the Solon City Charter violates
{¶ 31} Moreover, we have no jurisdiction over the committee‘s challenges to two other aspects of the Article XIV charter provisions: (1) the “ward veto” provision, under which a zoning initiative will fail if not approved by a majority of electors in the ward in which the subject property is located, and (2) the purported “two vote” requirement, i.e., thе committee‘s assertion that the charter requires an initiative to undergo two separate votes (an interpretation that the city rejects). This court lacks jurisdiction over a mandamus claim if the true object of the claim is a declaratory judgment and a prohibitory injunction. State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018-Ohio-1854, 103 N.E.3d 809, ¶ 9. To remedy the committee‘s constitutional challenges to the ward veto and two-vote provisions would require not the relief the committee seeks here—a writ ordering the initiative petition certified to the board of elections—but a declaration that Article XIV is
C. Should the Committee Receive Its Costs and Reasonable Attornеy Fees Under R.C. 733.61 ?
{¶ 32}
{¶ 33} With its complaint, the committee filed a motion to establish the amount of security for costs, asking the court to determine whether a security beyond its $100 e-filing fee and $100 e-filing deposit is required.
{¶ 34} In Maple Hts., this court considered a similar motion and explained that while security for costs is a “jurisdictional prerequisite to a statutory taxpayer action,” the court has “rejected the argument that security must be provided at the time the suit is initially filed and held instead that a court may later transform a common-law taxpayer action into a statutory one through a waiver of security.” (Emphasis sic.) 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, at ¶ 26. In that case, the court granted a writ ordering the Maple Heights city council to immediately approve an ordinance placing a charter amendment on the ballot,
IV. CONCLUSION
{¶ 35} In light of the foregoing, we issue a writ of mandamus ordering the Solon director of finance to certify the sufficiency and validity of the initiative petition to the Cuyahoga County Board of Elections for placement on the November 2018 general-election ballot. We deny the writ as to the remaining respondents.
{¶ 36} We grant the motion to establish security for costs and waive the provision of security for costs. We grant the committee its costs and reasonable attorney fees; attorney fees will be determined upon review of the committee‘s filing of an itemized application and independent evidence supporting the reasonableness of the hourly rates charged and the hours billed. The application should not include attorney‘s fees for pages 21 through 28 of relators’ reply brief, which were stricken.
Writ granted in part and denied in part, and motion granted.
O‘CONNOR, C.J., and O‘DONNELL, KENNEDY, FRENCH, and DEGENARO, JJ., concur.
FISCHER, J., conсurs but would deny the committee‘s request for attorney fees.
DEWINE, J., dissents, with an opinion.
{¶ 37} I dissent. The Ohio Constitution grants municipalities the authority to “exercise all powers of local self-government.”
{¶ 38} Solon‘s charter provides that most initiative petitions are to be governed by state law but makes an explicit exception to state-law procedures for zoning matters—specifically, it states, “except that оrdinances or resolutions proposed by initiative petition to affect [sic] a zoning district change or zoning use change shall be governed by Article XIV of this Charter.” Solon Charter, Article IX, Section 1(d). This provision is a clear and unequivocal statement of the city‘s intention to exercise its home-rule power to regulate the initiative process for zoning changes. (Indeed, it is hard to imagine how the city could have expressed its intention any more clearly.) Thus, I would conclude that the city‘s charter governs the manner in which a relator‘s initiative petition is advanced to the ballot. And I would further hold that Solon City Council did not violate a clear legal duty in failing to pass the initiative ordinance in time for its placement on the November 2018 ballot.
Thе City Exercises its Home-Rule Authority over the Initiative Process
{¶ 39} Under the Ohio Constitution‘s home-rule provisions, municipalities are authorized “to exercise all powers of local self-government.”
{¶ 40} Solon, for the most part, has acceded to following the initiative procedures provided in
{¶ 41} Despite the Solon charter‘s express directive that its own Article XIV—not state law—applies, the majority undertakes a protracted analysis about whether the charter provision “clearly and expressly conflict[s] with
{¶ 42} It appears that the majority would find that the statutes and charter conflict—and allow the city to exercise its home rule powers—only if the charter outlined a process that differed item by item with the process set forth in the
{¶ 43} Indeed, the majority‘s position doesn‘t really contradict Solon‘s claim that the city‘s charter has clearly provided for another proсess for zoning ordinances proposed by initiative petitions. Instead, the gist of the argument is that Solon‘s charter doesn‘t do it as well as
A municipality automatically has the form of government prescribed by the statutes of the state unless its citizens voluntarily adopt a charter pursuant to the constitutional provision, and where a majority of the sovereign voters do adopt such a charter it is not for the courts to question the wisdom or desirаbility of the provisions of such charter in respect to purely local affairs.
Hackley at 218. See also Buckeye Community Hope Found. v. Cuyahoga Falls, 81 Ohio St.3d 559, 564, 692 N.E.2d 997 (1998) (“The constitution does not dictate how municipalities may incorporate a referendum provision into their governing mechanism; nor does it place restrictions upon the nature of the referendum
{¶ 44} Because the city has adopted “its own charter containing an initiative and referendum provision for its own ordinances and other legislative matters,”
The City Had No Clear Legal Duty to Advancе the Initiative Ordinance in Time to Be Placed on the November Ballot
{¶ 45} The committee argues in the alternative that if the city‘s charter governs the initiative process, the city had a legal duty to take action so that the initiative ordinance would appear on the November 2018 ballot. The committee suggests that the city council delayed action due to animus toward the proposed ordinance and argues that in the time since the initiative petition was filed with the city on July 12, 2018, the city could have (1) provided for three readings of the ordinance as required by Article IV, Section 5(c) of the Solon City Charter, (2) passed an emergency ordinance to submit the petition to voters, or (3) acted by motion to submit the petition to voters. Notably, the committee doesn‘t allege that the city failed to follow its charter. Instead, the committee maintains that the city could have acted differently to meet the deadline to place the initiative on the November 2018 ballot.
{¶ 46} In State ex rel. Commt. for the Proposed Ordinance to Repeal Ordinance No. 146-02, West End Blight Designation v. Lakewood, 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, we considered a petition for a writ of mandamus that claimed in part that the Lakewood city council had intentionally delayed action on a proposed initiative to avoid placing it on the November 2003 ballot. We concluded that the relators’ claim had no merit. The council could have
{¶ 47} Likewise, the Solon city council‘s actions here were authorized by its charter. Under Article XIV, Section 1, council needed to pass the initiated ordinance at least 90 days before it could be submitted to voters for approval. For the November 2018 ballot, that meant the ordinance had to be passed by August 8. The charter further provides that
each ordinance * * * shall before its passage, be read by title only on three separate days unless the requirement for such reading be dispensed with by the concurrence of at least five Councilmen; provided, however, that any emergency measure may be passed after one reading and the legislative authority may require any reading to be in full by a majority vote of its members.
Solon City Charter, Article IV, Section 5(c).
{¶ 48} After the Cuyahoga County Board of Elections certified the number of valid signatures on the petition (870), the city retrieved the petition and certification on July 31. The petition was then read by title for the first time at the council‘s next regular meeting on August 6. According to respondents, the council generally held meetings on the first and third Mondays of each month. If the city council held to this schedule, the next regular meeting during which the initiative could have been read was August 20, less than 90 days before the November 2018 general election. The procedures followed by the council were in accordance with the charter.
{¶ 49} The committee cites cases in which we determined that municipal officers had to take immediate action to submit initiatives to voters if time was limited. See State ex rel. Commt. for Charter Amendment Petition v. Avon, 81 Ohio St.3d 590, 595, 693 N.E.2d 205 (1998); State ex rel. Commt. for Charter Amendment Petition to Limit the use of Photo-Monitoring Devices in Maple Hts. v. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 22. But as we explained in Lakewood, those cases, which involved charter-amendment provisions, differ from cases involving initiative petitions, because in charter-amendment cases, municipalities are required “to ‘forthwith’ authorize by ordinance on the charter issue.” Lakewood, 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 361, at ¶ 17, quoting Ohio Constitution, Article XVIII, Sections 8 and 9. No such constitutional requirement exists for initiated zoning ordinances.
{¶ 50} Importantly, the question is not whether the committee‘s initiative petition will go on the ballot, but when. As the city acknowledges, “[t]he real issue is whether the petition will be submitted for November, 2018 or May, 2019 election.” I would conclude that the city of Solon was under no clear legal duty to mеet the committee‘s timeline for placing the initiative on the November 2018 ballot. I therefore would deny the writ of mandamus as to the city. Further, because the committee‘s claims were not well founded, I would deny costs and attorney fees under
Berns, Ockner & Greenberger, L.L.C., Jordan Berns, and Majeed G. Makhlouf; and McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, and Ben F.C. Wallace, for relators.
Thomas G. Lobe Co., L.P.A., and Thomas G. Lobe; Lon D. Stolarsky; and Todd D. Cipollo Co., L.P.A., and Todd D. Cipollo, for respondents Matt Rubino, Solon City Council, and city of Solon.