75 Ohio St. 3d 381 | Ohio | 1995
Lead Opinion
Following our July 26, 1995 decision in this cause, appellant retained counsel, who filed the motion for reconsideration here and the complaint for a writ of mandamus in a separate expedited election case, State ex rel. Ricchiuto v. Reagan, case No. 95-1679. Both Ricchiuto and another expedited election case, State ex rel. Taxpayers for Accountable Govt. v. Cincinnati City Council, case No. 95-1714, challenged the validity of Huebner. A third expedited election case, State ex rel. Lewis v. Hamilton Cty. Bd. of Elections, case No. 95-1689, sought to apply Huebner to prevent a previously certified charter amendment proposal from being submitted to the electorate for vote. Ricchiuto was resolved when this court denied the writ requested by the relators. State ex rel. Ricchiuto v. Reagan (1995), 74 Ohio St.3d 11, 655 N.E.2d 1298. Taxpayers and
Appellant and the city of Cincinnati
. We have invoked the reconsideration procedures set forth in S.Ct.Prac.R. XI to correct decisions which, upon reflection, are deemed to have been made in error. See State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections (1993), 67 Ohio St.3d 597, 622 N.E.2d 329 (reasoning contained in a previous dissenting opinion adopted by a majority of this court pursuant to a motion for reconsideration); State ex rel. Eaton Corp. v. Lancaster (1989), 44 Ohio St.3d 106, 541 N.E.2d 64 (views contained in a previous concurring opinion adopted by a majority of this court pursuant to a motion for “rehearing”).
The majority Huebner opinion reasoned that denial of the requested -writ was justified, in part, by the Home Rule Amendment to the Ohio Constitution, which authorizes municipalities “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.” Section 3, Article XVIII, Ohio Constitution. This justification for denial of the writ was not raised by appellees or discussed by the court of appeals, nor was it fully briefed in this court prior to issuance of our first opinion. We note, additionally, that the discussion of the Home Rule Amendment in our original opinion appears to be contrary to established precedent, and the sole case cited therein appears to be inapposite. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 577 N.E.2d 645. See, also, State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 335-336, 617 N.E.2d 1120, 1122, citing State ex rel. Hinchliffe v. Gibbons (1927), 116 Ohio St. 390, 395, 156 N.E. 455, 457; Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus. Appellant now urges us to recognize and reaffirm the principle that subordinate authority must always yield to contrary paramount authority, and hold that municipal charters may not be construed so as to overrule rights guaranteed to the citizens of Ohio by the Ohio Constitution.
The second rationale of our Huebner decision, and the basis of the court of appeals’ decision, is the premise that Section 9, Article XVIII of the Ohio Constitution constitutes a special provision (concerning charter amendments) which is in irreconcilable conflict with the general provision of Section 14, Article XVIII, Ohio Constitution. However, appellant and the Huebner dissent argue for a different interpretation of Sections 9 and 14. While Sections 5, 8, and 9 of Article XVIII refer to petitions of “ten per centum of the electors,” they do not specify the basis or date upon which the “ten per centum of electors” is to be calculated.
The court of appeals additionally determined that Section 9 should be deemed to prevail over Section 14 because Section 9 was last amended in 1971. On reconsideration, appellant argues against this view, in that the 1971 amendment to Section 9 did not affect the number of signatures required for submission of a proposed charter amendment to the electorate, but rather authorized notice of proposed charter amendments to be given by newspaper publication and not by mailing. Am.Sub.S.J.R. No. 31, 133 Ohio Senate Journal (1969-1970), at 1508. We agree.
A majority of this court now concludes that Section 14 is reconcilable with Sections 5, 8, and 9 of Article XVIII for the reasons set forth in the dissent to our first Huebner opinion as summarized herein. We hold that, in determining the number of valid part-petition signatures necessary to establish a right to the placement of a proposed amendment of a municipal charter before the voters, Sections 5, 8, 9, and 14, Article XVIII of the Ohio Constitution must be construed in pari materia. Accordingly, the percentage of electors required to sign such part-petitions is ten percent of the electors of the municipality based upon the total number of votes cast at the last preceding general municipal election. In the case at bar the relator was therefore required to present 49 valid signatures to create a legal duty on the part of the appellees to certify the proposed amendment for presentation on the ballot. Appellant met and exceeded that requirement by presenting part-petitions that contained 208 valid signatures.
Our decision is based upon a clear reading and consistent application of the Ohio Constitution. It is also the correct result for reasons of public policy. As appellant contends in his motion for reconsideration, our original opinion precludes electors from knowing the exact number of valid signatures required when circulating part-petitions. Under our earlier opinion, the percentage is not determined until the date the petition is filed, and the number of actual electors of a municipality may vary over time based on voter registration drives, annexations, or other events. Conversely, this uncertainty does not exist if Section 14
Having concluded that the reasoning contained in our prior opinion of July 26, 1995 should bé rejected, we must now discuss issues which the court of appeals found unnecessary to address in view of its conclusion that appellant failed to present a sufficient number of signatures.
In addition to an alleged lack of sufficient number of signatures, appellees further justified their refusal to certify the proposed charter amendment based on their conclusion that the petition misled electors and was confusing. However, a municipal legislative authority such as a city or village council lacks authority to consider substantive errors in reviewing the sufficiency of petitions, and is instead limited to reviewing the form of the petition. State ex rel. Polcyn v. Burkhart (1973), 33 Ohio St.2d 7, 11-12, 62 O.O.2d 202, 204, 292 N.E.2d 883, 886; State ex rel. Concerned Citizens for More Professional Govt. v. Zanesville City Council (1994), 70 Ohio St.3d 455, 457-458, 639 N.E.2d 421, 423; State ex rel. Citizens for a Better Portsmouth v. Sydnor (1991), 61 Ohio St.3d 49, 572 N.E.2d 649. Appellees conceded below that they rejected the petition partly based on its substance. The appellees thereby exceeded their authority, and this proffered alternative basis for rejecting the petition is invalid.
Where a municipal legislative authority erroneously either fails to submit a charter amendment when it is presented with a legally sufficient petition or fails to make a prompt determination on the sufficiency of the petition within the constitutional time period, this court has issued writs of mandamus to order placement on the next regular election ballot. Morris v. Macedonia City Council (1994), 71 Ohio St.3d 52, 641 N.E.2d 1075; State ex rel. Citizens for a Better Portsmouth v. Sydnor, supra; State ex rel. Jurcisin v. Cotner (1984), 10 Ohio St.3d 171, 10 OBR 503, 462 N.E.2d 381. A regular primary election is scheduled to occur in this state not less than sixty nor more than one hundred and twenty days from the date of this decision. Cf. Section 8, Article XVIII, Ohio Constitution. We find presentation of the charter amendment issue on the March ■ 1996 primary ballot to be the most equitable resolution of this cause for both relator and the public.
Motion for reconsideration granted, judgment reversed and writ granted.
. The motions for leave to intervene filed by the city of Cincinnati and the Secretary of State are granted.
Dissenting Opinion
dissenting. I respectfully dissent from the judgment and the opinion of the majority because I believe the majority makes not only a fundamental error of law but also a dangerous and unprecedented error of public policy. The damage of today’s blow to charter municipalities cannot be overestimated.
Section 7, Article XVIII of the Ohio Constitution provides that “[a]ny municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all
Section 9, Article XVIII of the Ohio Constitution sets forth the procedure to be used in amending a charter created in accordance with Section 7. Section 9 provides, in pertinent part, that “[ajmendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority.” (Emphasis added.)
R.C. 3501.01(N) defines “elector.” “ ‘Elector’ * * * means a person having the qualifications provided by law to be entitled to vote.” (Emphasis added.) R.C. 3501.01(0) defines “voter.” “ Voter’ means an elector who votes at an election.” (Emphasis added.) The difference between a person who is an “elector” and one who is a “voter” is obvious from these definitions.
Two other sections of Article XVIII of the Constitution use the term “electors” in connection with the right of petition. Section 5 deals with a municipality’s efforts “ * * * to acquire, construct, own, lease or operate a public utility * * The section provides that “[i]f within * * * thirty days a petition signed by ten per centum of the electors of the municipality shall be filed with the executive authority thereof demanding a referendum on such ordinance it shall not take effect until submitted to the electors and approved by a majority of those voting thereon.” (Emphasis added.)
Section 8 provides, in part, that “ * * * upon petition of ten per centum of the electors [the legislative authority of any city or village] shall forthwith, provide by ordinance for the submission to the electors, of the question, ‘Shall a commission be chosen to frame a charter.’ ”
Thus, Sections 5, 8 and 9 of Article XVIII of the Ohio Constitution provide for petitions signed by ten per centum of the electors to place on a ballot matters concerning public utilities, charter commissions and charter amendments. Notwithstanding these clear, unambiguous and mandatory provisions, the majority today says that signatures of ten per centum of the electors are not needed. All that is needed to place these important issues on a ballot for, if successful, inclusion in the charter of a municipality, are the signatures of ten per centum of the persons voting (voters) at the last preceding general municipal election. To arrive at this result, the majority references Section 14, Article XVIII of the Ohio Constitution. If the majority’s conclusion is correct, then Section 14 conflicts with Sections 5, 8 and 9, and the specific provisions of Sections 5, 8 and 9 prevail over the general provisions of Section 14. R.C. 1.51. No matter how the majority says it in different ways and no matter how many times the majority
Why is any or all of this so important? Because the charter of a city is comparable to a local constitution. In State ex rel. Bednar v. N. Canton (1994), 69 Ohio St.3d 278, 281, 631 N.E.2d 621, 624, we said that “[m]any ‘matters of local self-government’ are, in fact, matters of detail and procedure that are out of place in a charter, which is comparable to a local constitution.” We repeated this in the very recent case of State ex rel. Hipp v. N. Canton (1996), 75 Ohio St.3d 221, 224, 661 N.E.2d 1090, 1093. Yet, today the majority makes it easier to obtain a vote to place a matter in a municipality’s constitution than it is to obtain a vote on a simple ordinance. By today’s decision, the majority negates, I believe, many municipal charter provisions that we do not, or cannot, even know exist. Take just two examples.
In a recent case decided by this court, Paschal v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 141, 656 N.E.2d 1276 (decided by the court on grounds different from the issue now before us in the case at bar), a number of residents of the village of Highland Hills in Cuyahoga County initiated and signed petitions seeking to have placed on the ballot an ordinance that would have prohibited, if the ordinance were passed, any new penal facilities within the village. The petitions were circulated pursuant to Article VI (Initiative, Referendum and Recall) of the charter of the village of Highland Hills.
Section 1(b), Article VI of the charter of the village states, in part, that: “An initiated ordinance or resolution shall be submitted to Council by a petition signed by qualified electors equal in number to at least fifteen percent (15%) of the total vote cast in the last regular municipal election.” (Emphasis added.) Further, a subsequent provision in the same section (Section 1) states that “[i]f the initiative petition is signed by qualified electors equal in number to at least twenty-five percent (25%) of the total votes cast at the last regular municipal election, the date of the election may be fixed by the petition.” (Emphasis added.) Thus, to initiate an ordinance in Highland Hills, petitions signed by at least fifteen percent of the electors of the village who voted in the last regular municipal election must be presented. If the petitioners choose to designate a date for the election, then signatures of twenty-five percent of the total number of people who cast votes cast at the last regular municipal election must be submitted.
By today’s majority decision, it will now be easier to propose the amending of the constitution (charter) of the village of Highland Hills than to initiate an
Or, as yet another example, take the charter of the city of Toledo. Section 5, Chapter I of the charter provides for the amending of the charter. The section provides, in part, that “[a]ny amendment to this Charter * * * shall be submitted when a petition is filed with the Clerk of the Council setting forth the proposed amendment and signed by not less than ten percent of the electors.” (Emphasis added.) Section 6, Chapter I defines “electors” as “residents of the City qualified to vote to fill all elective offices.”
Chapter VI of the charter of the city of Toledo is entitled “Initiative, Referendum and Recall.” Section 75, Chapter VI provides for how ordinances may be initiated. The section provides' that “[a]ny proposed ordinance may be submitted to the Council by petitions filed with the Clerk and signed by electors of the City equal in number to twelve percent (12%) of the total number of votes cast for all candidates for Mayor at the most recent general municipal election at which the Mayor was elected.” (Emphasis added.)
Now suppose a group of well-meaning citizens of Toledo decided that no junk cars may be parked or stored on a residential property, or that no spray paint may be sold to minors because the city has a graffiti problem, or that each cat owned by a citizen must have, like dogs, a license, or that there should be a curfew (there now is) in the city. The citizens set about trying to find the easiest way to have such proposals become the law of the city. They determine that a vote of the people of Toledo is necessary because city council rejects all the citizens’ ideas.
Assume that the last general municipal election was held in November 1993. At that election, there were 172,000
It is clear that those persons framing charters know the difference between “electors” and “voters.” This is evidenced by the fact that the term “electors” is used and defined, and when the framers of the Highland Hills charter meant “voters,” they spelled out “the total vote cast in the last regular municipal election.”
Sir Winston Churchill once said, “I have always considered that the substitution of the internal combustion engine for the horse marked a very gloomy milestone in the progress of mankind.” International Dictionary of Thoughts (1969) 586. While some will hail today’s majority decision as progress for easy access to the ballot, I can foresee that those governmental subdivisions with charters will consider this day to be a gloomy milestone for their constitutions.
I respectfully dissent. I would deny the motion for reconsideration and ‘adhere to our decision reported in 72 Ohio St.3d 589, 651 N.E.2d 1001, which affirmed the well-reasoned judgment of the court of appeals. Our prior case was decided on July 26, 1995 — less than eight months ago. At least now maybe we will not see any more lectures on stare decisis.
. All numbers have been rounded off.
Concurrence Opinion
concurring. I concur with the legal determinations made by the majority because I do not believe that Section 9, Article XVIII of the Ohio Constitution clearly prevails over Section 14, Article XVIII. The two provisions in the Constitution contradict one another. After reviewing the brief submitted by the intervenor Secretary of State, I conclude that our decision in State ex rel. Huebner v. W. Jefferson Village Council (1995), 72 Ohio St.3d 589, 651 N.E.2d 1001, is impractical and that the majority’s new approach is the better way to harmonize these conflicting provisions of the Ohio Constitution.
