THE STATE EX REL. HILDRETH ET AL. v. LAROSE, SECY OF STATE, ET AL.
No. 2023-1213
Supreme Court of Ohio
Submitted October 6, 2023-Decided October 8, 2023.
Slip Opinion No. 2023-Ohio-3667
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 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. 2023-Ohio-3667
THE STATE EX REL. HILDRETH ET AL. v. LAROSE, SECY OF STATE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Hildreth v. LaRose, Slip Opinion No. 2023-Ohio-3667.]
Elections—Mandamus—Petitioners failed to file an initiative petition in compliance with
(No. 2023-1213—Submitted October 6, 2023—Decided October 8, 2023.)
IN MANDAMUS.
Per Curiam.
{¶ 1} In this expedited election case, relators, Marshall L. Blair Hildreth, Christopher N. Hildreth Blair, Sarah B. Lewis, Victoria Maddox, and Katelyn Roby, seek a writ of mandamus compelling respondents, Ohio Secretary of State Frank LaRose and the Logan County Board of Elections, to sustain a protest and remove an initiative from the November 2023 general-election ballot. We grant the writ.
Background
{¶ 2} Relators allege that in December 2022, a “drag queen dressed as an elf” participated in a Christmas parade on Main Street in the city of Bellefontaine. In April 2023, a group of Bellefontaine residents started the process for proposing an ordinance regarding “drag artist(s) and drag shows.” Under
{¶ 7} On September 19, Secretary LaRose voted against the protest. The secretary concluded that “the only relevant issue [was] whether the circulated part-petitions contained the full and complete title of the proposed ordinance” and that the circulated part-petitions “did contain the full and correct copy of the title of the proposed ordinance, specifically: ‘The classification of drag artist(s) and drag shows as Adult Cabaret Performance.‘” (Boldface sic.) The secretary stated that the words added to the filed part-petitions “are not the title of the proposed ordinance; rather, they are headings that explain what the proposed ordinance would do should it pass.”
{¶ 8} Relators filed this mandamus action on September 21, seeking to compel respondents to sustain their protest. On September 28, this court granted petitioners’ motion to intervene as respondents. ___ Ohio St.3d ___, 2023-Ohio-3463, ___ N.E.3d ___.
Analysis
Laches
{¶ 9} The board of elections argues that relators’ claim should be denied under the doctrine of laches. We decline to consider this argument because the board waived its right to assert laches by failing to raise that affirmative defense in its answer to the complaint. See
Mandamus
{¶ 10} To be entitled to a writ of mandamus, relators 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 respondents to provide that relief, and (3) the lack of an adequate remedy in the ordinary course of the law. See State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Given the proximity of the November election, relators lack an adequate remedy in the ordinary course of the law. See State ex rel. Conrath v. LaRose, 170 Ohio St.3d 222, 2022-Ohio-3594, 210 N.E.3d 504, ¶ 7. To satisfy the first two requirements, relators must show that respondents engaged in fraud or corruption, abused their discretion, or acted in clear disregard of applicable legal provisions. See id.
{¶ 11} Relators’ main argument is that the petition must be invalidated because petitioners replaced the first page of the part-petitions, adding language to the petition after the signatures were collected. They first argue that petitioners’ conduct violated
{¶ 12} Relators also argue that the petition did not comply with
{¶ 13} As an initial matter, we note that Secretary LaRose misconstrued relators’ protest in making his tiebreaking vote. Although relators’ protest focused on the fact that petitioners altered the part-petitions before filing the petition with the city auditor, Secretary LaRose analyzed the protest as if “the only relevant issue [was] whether the circulated part-petitions contained the full and complete title of the proposed ordinance.” In this case, Secretary LaRose continues to suggest that the only issue that must be decided is whether the part-petitions included a title, even though relators’ argument focuses on the fact that petitioners altered the part-petitions. As discussed below, whether the new language constitutes a title is relevant, because the determination of that issue will inform whether the filed petition complied with
{¶ 14} We hold that petitioners, by replacing the first page of the part-petitions after obtaining signatures, failed to file a petition in compliance with
{¶ 15} The filed petition also did not comply with
Any initiative or referendum petition may be presented in separate parts, but each part of any initiative petition shall contain a full and correct copy of the title and text of the proposed ordinance or other measure, and each part of any referendum petition shall contain the number and a full and correct copy of the title of the ordinance or other measure sought to be referred. Each signer of any such petition must be an elector of the municipal corporation in which the election, upon the ordinance or measure proposed by such initiative petition, or the ordinance or measure referred to by such referendum petition, is to be held.
(Emphasis added.) The second sentence, by referring to “[e]ach signer of any such petition,” makes clear that
{¶ 16} The language added to the part-petitions in July specifies that the proposed ordinance would amend Bellefontaine Codified Ordinance 1177.02. As
{¶ 17} There is no question that the title of a proposed ordinance is material to a petition. A title “provides notice of the proposal to signers of an initiative petition. More so than the text, the title immediately alerts signers to the nature of [the] proposed legislation.” State ex rel. Esch v. Lake Cty. Bd. of Elections, 61 Ohio St.3d 595, 597, 575 N.E.2d 835 (1991). Secretary LaRose recognized the significance of the information conveyed by the new language when explaining his tiebreaking vote. He said that the new language “explain[s] what the proposed ordinance would do should it pass.” The petition as filed does not comply with
{¶ 18} Secretary LaRose argues that the new language cannot be a title because the proposed ordinance that appeared on the circulated part-petitions already had a title. According to Secretary LaRose, the first line of the originally proposed ordinance—“The classification of drag artist(s) and drag shows as Adult Cabaret Performance“—was the title. The secretary emphasizes that this language has the quality of a title because it is a sentence fragment that, standing alone, does not define any terms or regulate conduct. He also points out that unlike with referendum petitions,
{¶ 19} Secretary LaRose tries to downplay the significance of the new language, arguing that it is merely a “header” and that its inclusion is a “technical defect” in the petition. We reject these arguments.
{¶ 20} To start, there is no statutory basis for calling the new language a header. The relevant statutes do not use that term. As noted above, the petition itself introduces the new language as a title. Moreover, as discussed above, the new language conveys material information about the nature of the proposed ordinance—namely, that it would amend Bellefontaine Codified Ordinance 1177.02. Secretary LaRose suggests that the belated inclusion of that information is at most a “technical defect,” pointing to testimony at the hearing indicating that circulators presented a copy of Bellefontaine City Ordinance Chapter 1177 to every person who signed the petition. But that testimony serves only to underscore the materiality of the information conveyed by the new language. The evidence shows that petitioners themselves understood the importance of communicating how the proposed ordinance would change the city‘s existing law. By altering the part-petitions and adding substantive language after signatures were collected, petitioners failed to comply with
{¶ 21} As a final matter, Secretary LaRose argues that we should deny the requested writ of mandamus because statutes governing the people‘s initiative power
{¶ 22} Secretary LaRose also asserts that we cannot substitute our judgment for his and that we must defer to his interpretation and application of the relevant election statutes. However, we recently clarified that the judiciary is never required to defer to an administrative interpretation of the law. TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, 172 Ohio St.3d 225, 2022-Ohio-4677, 223 N.E.3d 371, ¶ 3; see also State ex rel. Ferrara v. Trumbull Cty. Bd. of Elections, 166 Ohio St.3d 64, 2021-Ohio-3156, 182 N.E.3d 1142, ¶ 21 (“only the judiciary has ultimate authority to interpret the law“).
Conclusion
{¶ 23} Secretary LaRose and the board of elections abused their discretion and disregarded the law in overruling relators’ protest. Accordingly, we grant the requested writ of mandamus.
Writ granted.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ., concur.
The Steinhelfer Firm, L.L.C., and Tim Steinhelfer, for relators.
Dave Yost, Attorney General, Erik J. Clark, Deputy Attorney General, and Amanda L. Narog, Assistant Attorney General, for respondent Secretary of State Frank LaRose.
Eric C. Stewart, Logan County Prosecuting Attorney, and Breanne N. Parcels, Assistant Prosecuting Attorney, for respondent Logan County Board of Elections.
The Law Office of Josh Brown, L.L.C., and Joshua J. Brown, for intervening respondents.