THE STATE EX REL. HASSELBACH ET AL. v. SANDUSKY COUNTY BOARD OF ELECTIONS ET AL.
No. 2019-1191
Supreme Court of Ohio
September 18, 2019
2019-Ohio-3751
Submitted September 16, 2019
NOTICE
This sliр 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.
Mandamus—Elections—
IN MANDAMUS.
{¶ 1} In this expedited election case, relators, Dennis Hasselbach and Marilyn Moore, electors of the city of Fremont ( petitioners ), seek a writ of mandamus to compel respondent, the Sandusky County Board of Elections, to place a referendum petition concerning a city zoning ordinance on the November 2019 general election ballot. The board excluded the petition from the ballot after finding that the ordinance was properly passed as an emergency measure and therefore is not subject to referеndum. Because the ordinance fails to state an emergency under
I. BACKGROUND
A. The zoning ordinance passes as an emergency measure
{¶ 2} On June 6, 2019, Fremont City Council passed an ordinance that rezoned a parcel from single-family residential to multi-family residential. The parcel is owned by intervening respondent, Fremont Rental, Ltd. Fremont Rental sought the zoning change because it intends to construct apartments on the parcel.
{¶ 3} Petitioners allege that the zoning change was first proposed as a nonemergency measure at a city council meeting in May 2019. A third reading of the proposed ordinance occurred at council s June 6 meeting. See
The immediate operation of the provisions of this ordinance is necessary for the immediate preservation of the public peace, health, safety and welfare of the citizens of the City of Fremont. Said emergency being the immediate undertaking of the project to avoid an increase in project cost.
With this change, the ordinance passed by a four-to-two vote. {¶ 4} Fremont s city council ordinarily has seven members. See
{¶ 5} On June 28, a committee of Fremont electors (including petitioners) filed a referendum petition to have the zoning ordinance placed on the November ballot for approval or rejection by the voters. On July 19, Fremont Rental and one of its employees filed a protest against the petition with the board. On August 15, after a hearing, the board upheld thе protest, excluding the referendum from the ballot, by a three-to-one vote. The board concluded that the ordinance was properly passed as an emergency measure and therefore is not subject to referendum.
C. Petitioners file this mandamus action
{¶ 6} Petitioners filed this mandamus action against the board on August 26. Fremont Rental moved to intervene, and we granted the motion on September 3. Petitioners and Fremont Rental submitted evidence, and the matter is fully briefed.
D. Neighboring property owners challenge the validity of the ordinance in common pleas court
{¶ 7} Meanwhile, on July 23, Hasselbach and others filed a complaint in the Sandusky County Court of Commоn Pleas seeking declaratory judgment and injunctive relief against the city of Fremont. The plaintiffs in that case allege that the zoning ordinance is invalid and void for four reasons. Two of those reasons are similar to petitioners arguments in this case: that the ordinance was not passed by a two-thirds vote of all the members elected to the legislative authority, as required by
II. ANALYSIS
A. Preliminary issues
1. The jurisdictional-priority rule does not bar petitioners claim; and petitioners lack an adequate remedy at law
{¶ 8} Fremont Rental first argues that we lack jurisdiction under the jurisdictional-priority rule, because a similar action challenging the validity of the zoning ordinance is pending in the court of common pleas. Under the jurisdictional-priority rule, [a]s between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties. State ex rel. Phillips v. Polcar, 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus. The rule exists to promote judicial economy and avoid inconsistent results. State ex rel. Consortium for Economic & Community Dev. for Hough Ward 7 v. Russo, 151 Ohio St.3d 129, 2017-Ohio-8133, 86 N.E.3d 327, ¶ 10.
{¶ 9} The jurisdictional-priority rule generally requires the claims and parties [to] be the same in both cases, so [i]f the second case is not for the same cause of action, nor between the same parties, the former suit will not prevent the latter. State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 10, quoting State ex rel. Judson v. Spahr, 33 Ohio St.3d 111, 113, 515 N.E.2d 911 (1987). As petitioners point out, the common-pleas action and this action involve different causes of action and different parties. While the plaintiffs in the common-pleas action sued the city of Fremont seeking a declaration that the zoning ordinance is invalid because it was not properly enacted, petitioners here sued the board seeking mandamus relief, assuming
{¶ 10} Fremont Rental nevertheless contends that an exception to the general rule applies here because, it says, the two cases involve the same issue. To be sure, we have recognized that the jurisdictional-priority rule can apply even when the causes of action and relief requested are not exactly the same, as long as the actions present part of the same whole issue. Dunlap at ¶ 11, quoting State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 29, and State ex rel. Sellers v. Gerken, 72 Ohio St.3d 115, 117, 647 N.E.2d 807 (1995). But this case is unlike Dunlap, which involved a relator who had stated very similar public-records mandamus actions in multiple courts against essentially the same parties. Dunlap at ¶ 12. In contrast, the two actions filed by Hasselbach seek different relief and involve different theories, different causes of action, and a different defendant/respondent.
{¶ 11} The cases on which Dunlap relied do not support Fremont Rental s argument either. Otten involved two actions that not only included the same parties and same causes of action but also present[ed] the same issue. Otten at ¶ 29. And in Sellers, we declined to apply the exception to the general rule, because it [was] not clear * * * that the two suits comprise[d] part of the same whole issue. Sellers at 117. Fremont Rental thus has not shown that the common-pleas action and this action overlap to such a degree that they fit within the exception to the general rule. We therefore reject Fremont Rental s argument that we lack jurisdiction becausе of the jurisdictional-priority rule.
{¶ 12} Although the parties do not address it, the common-pleas action is relevant to another issue in this case—whether petitioners have an adequate remedy at law. See State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6 (holding that a relator in a mandamus action must prove the lack of an adequate remedy in the ordinary course of law). We recently held that under certain circumstances, a party may have an adequate remedy at law in an election matter when it first pursues an action in a common pleas court. State ex rel. Fleming v. Fox, __ Ohio St.3d __, 2019-Ohio-3555, __ N.E.3d __, ¶ 8.
{¶ 13} But this case is unlike Fleming, which involved a special statutory proceeding under
2. Laches does not apply
{¶ 14} Fremont Rental argues that petitioners claim is barred under the doctrine of laсhes. We have applied laches in election cases, which require relators to exercise [e]xtreme diligence and promptness. State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections, 86 Ohio St.3d 107, 113, 712 N.E.2d 696 (1999). The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the
{¶ 15} Fremont Rental argues that petitioners unreasonably delayed by bringing this action on August 26—11 days after the board s decision. Indeed, this delay could be viewed as unreasonable. See Paschal v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 141, 142, 656 N.E.2d 1276 (1995) (applying laches based on 9-day delay). But we generally require a showing of рrejudice before * * * apply[ing] laches to bar a consideration of the merits of an election case. State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, ¶ 11.
{¶ 16} Regarding prejudice, Fremont Rental argues only that petitioners delay caused extended uncertainty respecting the goal of the underlying ordinance and whether there d be a referendum or not. Fremont Rental fails to show that uncertainty regarding the outcome of pending litigation constitutes material prejudice for purposes of applying laches. And even if the uncertainty of litigation could constitute prejudice, Fremont Rental s claim is illusory: If petitioners had filed this action several days еarlier, Fremont Rental likely still would be in the same position. Petitioners delay did not cause the uncertainty surrounding the zoning ordinance. We therefore reject Fremont Rental s laches argument.
B. Petitioners compliance with election laws
{¶ 17} Fremont Rental next argues that we should not reach the merits of petitioners claim because petitioners failed to comply with
1. Petitioners complied with R.C. 731.32 by filing a certified copy of the ordinance with the city auditor
{¶ 18}
Whoever * * * files a referendum petition against any ordinance or measure shall, before circulating such petition, file a certified copy of the proposed ordinance or measure with the city auditor or the village clerk.
As used in this section, certified copy means a copy containing a written statement attesting that it is a true and exact reproduction of thе original proposed ordinance or measure or of the original ordinance or measure.
We have held that because
{¶ 19} At the hearing before the board, the city auditor testified that petitioners filed a certified copy of the ordinance in his office. A copy of the certification, indicating receipt by the city auditor on June 14, was introduced at the hearing. Given that the petition itself was filed on June 28, the evidence shows that petitioners complied with
COPY CERTIFICATION BY DOCUMENT CUSTODIAN
I, Kenneth P. Frost, hereby swear (or affirm) that the attached reproduction of Ordinance No. 2019-3961 is a true, correct and complete photocopy of a document in my possession. Under penalty of perjury under the laws of the state of Ohio, I attest to the truthfulness, accuracy, and validity of the forgoing statement.
{¶ 21} Fremont Rental contends that this certification was inadequate for four reasons. First, relying on State ex rel. Lewis v. Rolston, 115 Ohio St.3d 293, 2007-Ohio-5139, 874 N.E.2d 1200, it says thаt the referendum proponents themselves must make the certification required by
{¶ 22} Second, Fremont Rental argues that the certification suggests that Kenneth Frost, not the petitioners themselves, filed the ordinance with the city auditor. We reject this argument because the city auditor testified that Hasselbach filed the certified copy of the ordinance.
{¶ 23} Third, Fremont Rental complains that the certification did not parrot the language of
{¶ 24} Finally, Fremont Rental argues that the certification was invalid because no evidence exists that Frost examined the referendum proposal and compared it with the original ordinance for purposes of a proper attestation. This argument lacks merit because
2. Noncompliance with R.C. 731.35(A)(3) would not invalidate the petition
{¶ 25}
{¶ 26} We need not decide whether a financial-disclosure statement needed to be filed in this instance, because even if one was required, the violation would not invalidate the referendum petition. Under
{¶ 27} Fremont Rental nevertheless argues that we must declare the referendum petition invalid to ensure mandatory compliance with
C. Review of the board s decision
{¶ 28} To be entitled to a writ of mandamus, petitioners must prove, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. Waters, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, at ¶ 6, 13. As discussed above, we conclude that petitioners lack an adequate remedy at law.
{¶ 29} To satisfy the first two elements for mandamus relief, petitioners must show that the board engaged in fraud or corruption, abused its discretion, or acted in cleаr disregard of applicable legal provisions when it refused to place the referendum on the ballot. State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. Because petitioners make no allegation of fraud or corruption, they must show that the board abused its discretion or disregarded the law when it rejected the petition. In examining the board s decision, we need accord no deference to [the board s] interpretation of state election law. State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 30, fn. 2.
{¶ 30} Petitioners first argue that because Fremont City Council, by law, consists of seven members, five votes were needed to pass the ordinance as an emergency measure under
{¶ 31}
[E]mergency ordinances or measures necessary for the immediate
preservation of the public peace, health, or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure.
(Emphasis added.)
{¶ 32} We acknowledge that in assessing compliance with this provision, our review is limited: We may determine whether council gave a reason for passage of the ordinance as an emergency that was purely conclusory, tautological, or illusory, State ex rel. Webb v. Bliss, 99 Ohio St.3d 166, 2003-Ohio-3049, 789 N.E.2d 1102, ¶ 14, but we may not determine whether the reason given was a valid one. State ex rel. Laughlin v. James, 115 Ohio St.3d 231, 2007-Ohio-4811, 874 N.E.2d 1145, ¶ 24, 27. As we explained in State ex rel. Fostoria v. King, [t]he statutory requirement of stating reasons for declaring the emergency is provided only to satisfy voters that their representatives did have valid reasons for the necessity of declaring that the ordinance was an emergency. 154 Ohio St. 213, 220-221, 94 N.E.2d 697 (1950).
{¶ 33} We determined that a municipal legislative authority had not complied with
{¶ 34} The ordinance at issue here is similarly flawed. It first parrots
{¶ 35} We first note that because this case involves plans for a private development, it is unlike State ex rel. Moore v. Abrams, 62 Ohio St.3d 130, 580 N.E.2d 11 (1991), which involved a public construction project. In Moore, which involved a city-charter provision similar to
{¶ 36} Thus, on its face, the ordinance contains no viable reason to exempt the rezoning from the electorate s cоnstitutional right of referendum. Webb, 99 Ohio St.3d 166, 2003-Ohio-3049, 789 N.E.2d 1102, at ¶ 20. Although Fremont Rental now argues that there were legitimate reasons for the emergency declaration, these after-the-fact justifications for the passage of the ordinance as an emergency * * * were not contained in the ordinance. (Emphasis sic.) Id. at ¶ 22.
{¶ 37} If there is, in fact, a connection between Fremont s public peace, health, or safety and Fremont Rental s project costs, it was city council s duty under
{¶ 38} Because the ordinance was not properly enacted as an emergency measure and is subject to referendum, we grant the writ.
Writ granted.
O CONNOR, C.J., and FRENCH, DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., concurs, with an opinion joined by DEWINE, J.
FISCHER, J., concurs in judgment only.
KENNEDY, J., concurring.
{¶ 39} I agree that relators, Dennis Hasselbach and Marilyn Moore, are entitled to a writ of mandamus to compel respondent, the Sandusky County Board of Elections, to placе a referendum on a zoning ordinance enacted by the city of Fremont on the November 2019 ballot. I write separately to explain more fully why the Fremont City Council s declaration of an emergency in enacting the ordinance rezoning a single piece of property is insufficient to deprive the city s electorate of the paramount right of referendum.
{¶ 40} In this case, intervening respondent, Fremont Rental, sought to have a parcel of property it owns rezoned from single-family residential to multi-family residential in order to construct an apartment building. The Fremont planning commission recommended granting the zoning change, and the city council read a proposed ordinance to adopt the zoning amendment at two separate meetings. Before the ordinance could be read a third time as required by
{¶ 41} On June 28, a committee of Fremont electors filed a referendum petition
{¶ 42} Hasselbach and Moore then filed this action seeking a writ of mandamus to compel the board of elections to place the zoning-ordinance referendum on the November 2019 ballot.
{¶ 43}
emergency ordinances or measures necessary for the immediate preservation of the public peace, health, or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necеssity shall be set forth in one section of the ordinance or other measure.
{¶ 44} Construing G.C. 4227-3, the predecessor statute to
{¶ 45} This court has since adhered to thе holding that the legislative declaration of an emergency—which the General Assembly excepted from its general legislative authorization of municipal referendum in
{¶ 46} Nonetheless, we have recognized that
{¶ 47} Our cases have therefore required legislative authorities to set forth specific reasons supporting the emergency declaration—it is not enough to state[] that it was an emergency because it was an emergency, State ex rel. Waldick v. Williams, 74 Ohio St.3d 192, 195, 658 N.E.2d 241 (1995), citing Walsh v. Cincinnati City Council, 54 Ohio App.2d 107, 375 N.E.2d 811 (1st Dist.1977). There must be valid reasons for the necessity of declaring that the ordinance was an emergency. Fostoria, 154 Ohio St. at 221, 94 N.E.2d 697.
{¶ 48} But nothing in the text of
{¶ 49} A contrary holding would abdicate the judicial responsibility to say what the law is, Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803), would permit almost any emergency declaration to evade judicial review, and would allow almost any ordinance to avoid the people s judgment at the ballot box. However, it is our duty to determine whether a city council has acted within the statutory authority granted to it by the General Assembly and in accordance with the constitutional right of citizens to referendum. That right, we have explained, is of pаramount importance in this state. Laughlin, 115 Ohio St.3d 231, 2007-Ohio-4811, 874 N.E.2d 1145, at ¶ 25, quoting State ex rel. Ohio Gen. Assembly v. Brunner, 115 Ohio St.3d 103, 2007-Ohio-4460, 873 N.E.2d 1232, ¶ 8.
{¶ 50} The ordinance at issue in this case would simply rezone a parcel from a single-family-residential to a multifamily-residential property, yet it declares an emergency because immediate undertaking of the project is necessary to avoid an increase in project cost. That reason, on its face, is not sufficient, because increased project costs borne by a developer do not, standing alone, represent an immediate threat to or need to preserve the public peace, health, or safety. As Justice Stratton once observed, The process of land development and transfer are slow and deliberate events, sometimes taking years. What scenario could possibly be such a dire emergency that it cannot wait an additional thirty days? Taylor v. London, 88 Ohio St.3d 137, 144, 723 N.E.2d 1089 (2000) (Stratton, J., dissenting). But the ordinance here fails to answer that question. A statement that rezoning is needed to protect a single developer from
{¶ 51} Because the ordinance enacted by the Fremont City Council is not supported by reasons showing that emergency action is necessary for the immediate preservation of the public peace, health, or safety, it is subject to referendum. Accordingly, I concur in the majority s opinion and its judgment issuing a writ of mandamus compelling the board of elections to place a referendum on the rezoning ordinance on the November 2019 ballot.
DEWINE, J., concurs in the foregoing opinion.
Albrechta & Coble, Ltd., John A. Coble, Joseph F. Albrechta, and George J. Schrader, for relators.
Timothy Brown, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for respondent.
Mayle L.L.C., Andrew R. Mayle, and Ronald J. Mayle, for intervening respondent.