THE STATE EX REL. MILES v. MCSWEENEY, CITY CLERK, ET AL.
No. 2002-1317
SUPREME COURT OF OHIO
Submitted August 23, 2002—Decided August 30, 2002.
96 Ohio St.3d 352 | 2002-Ohio-4455
[Cite as State ex rel. Miles v. McSweeney, 2002-Ohio-4455.]
Elections—Mandamus sought to compel Columbus City Clerk to submit referendum petition on Columbus City Ordinance No. 0754-02, which imposes an excise tax on the short-term rental of passenger vehicles in Columbus to the city council at its next regular meeting—Writ granted—Relator‘s request for attorney fees denied for want of four affirmative votes.
IN MANDAMUS.
Per Curiam.
{¶1} On June 24, 2002, the Council of the city of Columbus, Ohio, enacted Columbus City Ordinance No. 0754-02, which imposes an excise tax of $4 per passenger vehicle per day upon the short-term rental of passenger vehicles within Columbus. The Acting Mayor of Columbus approved the ordinance on June 25, 2002. The specified effective date of the ordinance was August 1, 2002.
{¶2} Relator, Kevin Miles, an elector and taxpayer of Columbus, is a member of a committee formed to circulate a referendum petition on Ordinance No. 0754-02. On July 3, 2002, Miles, on behalf of the committee, filed a certified precirculation copy of the referendum petition and Ordinance No. 0754-02 with the office of respondent Columbus City Clerk Timothy McSweeney. The petition requested that the ordinance either be repealed by the city council or be submitted to the electorate at the November 5, 2002 general election. Following the filing of the certified copy of the referendum petition, the part-petitions were circulated.
{¶3} On July 23, 2002, Miles filed the referendum petition with the city clerk‘s office. The petition consisted of 483 part-petitions and contained more than 11,000 signatures. The petition was defective because it lacked the circulator affidavits required by Section 49 of the Columbus Charter. See, e.g., State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 475, 764 N.E.2d 971, where we held that the comparable provision of Section 42 for initiative petitions required a circulator affidavit. Instead, the petition contained unnotarized circulator statements.
{¶4} On the morning of July 24, 2002, Miles withdrew the petition. Later that day, Miles refiled the previously filed 483 part-petitions and 3 new part-petitions as one instrument with the city clerk. Three hundred ninety-five of the previously filed part-petitions and the 3 newly submitted part-petitions contained notarized circulator affidavits that verified that (1) each circulator was a qualified Ohio elector residing at the stated address, (2) each circulator was the circulator of the specified part-petition containing the noted number of signatures, (3) each circulator witnessed the affixing of every signature on the part-petition, with each signature appended thereto in the circulator‘s presence, and (4) to the best of each circulator‘s knowledge and belief, all signers were qualified to sign, and every signature was the signature of the person whose signature it purported to be. The remaining 88 part-petitions were resubmitted without circulator affidavits. July 24, 2002, was the final day for a valid referendum petition on Ordinance No. 0754-02 to be filed to prevent the ordinance from becoming effective. Section 48, Columbus Charter.
{¶5} According to McSweeney, at least 27 part-petitions of the 486 part-petitions submitted by Miles on July 24 contain some alteration to the original unnotarized circulator statements, e.g., circulators’ names and signatures crossed out and other circulators’ names and signatures added. Nevertheless, McSweeney presented no evidence that these corrections occurred after the initial July 23, 2002
{¶6} By letter dated July 25, 2002, McSweeney advised Miles and other members of the petitioning committee that the resubmitted referendum petition was insufficient and invalid because the resubmission of the petition with attached circulator affidavits constituted an improper alteration, addition, or correction to the petition. McSweeney stated that although he would not submit the petition to the city council for further action, he would nevertheless forward the petition to the Franklin County Board of Elections for its determination of the number of valid signatures on the petition.
{¶7} On July 29, 2002, the petitioning committee requested, pursuant to
{¶8} On July 31, 2002, Miles, on relation of both the state and the city, filed this action for a writ of mandamus to compel McSweeney to immediately submit the referendum petition to the city council at its next regular meeting, provided that the board of elections certified the sufficiency of the number of valid signatures on the petition, and stayed or enjoined implementation of the ordinance. Miles also named Columbus City Auditor Hugh J. Dorrian as a respondent because he has the duty under Ordinance No. 0754-02 to administer and enforce it. Miles filed a motion to expedite a briefing schedule.
{¶9} On August 2, we granted an alternative writ, issued an expedited schedule for the presentation of evidence and briefs, and stayed the implementation of Ordinance No. 0754-02.
{¶10} On that same date, the board of elections certified that the referendum petition contained 4,189 valid signatures, which is more than the 3,922 signatures
{¶11} This cause is now before the court for a consideration of the merits.
{¶12} Miles requests a writ of mandamus to compel McSweeney to perform his legal duties under Section 50 of the Columbus Charter by submitting the petition to the city council at its next regular meeting.
{¶13} In order to be entitled to the requested writ of mandamus, Miles must establish a clear legal right to have McSweeney submit the referendum petition to the city council at its next regular meeting, a corresponding clear legal duty on the part of McSweeney to do so, and the lack of an adequate remedy in the ordinary course of the law. Ditmars, 94 Ohio St.3d at 474, 764 N.E.2d 971. Miles has established that he lacks an adequate remedy in the ordinary course of the law. See, e.g., State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291-292, 649 N.E.2d 1205, quoting State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 412 N.E.2d 393 (“Concerning the third prerequisite for a writ * * *, given the proximity of the election, an injunction would arguably not constitute an adequate remedy because any ‘appellate process would last well past the election’ “). Therefore, we must determine whether Miles proved the remaining requirements for extraordinary relief in mandamus.
{¶14} Under Section 50 of the Columbus Charter, McSweeney, as the city clerk, has a duty, within ten days after the filing of a referendum petition, to certify the number of signatures appended and submit the petition to the city council at its next regular meeting:
{¶15} “All papers comprising any such petition shall be assembled and filed with the city clerk as one instrument. The city clerk shall, within ten days after the
filing thereof, certify thereon the number of signatures thereto appended, and shall submit the petition to the council on the date of its next regular meeting. If the petition contains the required number of signers, the council shall, within thirty days after the date of filing such referendum petition by the city clerk, repeal the ordinance therein sought to be repealed, or shall order and provide for the submission of such ordinance to a vote of the electors of the city at an election to be held not less than sixty days thereafter.” (Emphasis added.)
{¶16} McSweeney refused to submit the petition under Section 50 of the charter because he determined that the petition violated
{¶17} In determining whether
{¶18} In Rose, 90 Ohio St.3d 229, 736 N.E.2d 886, syllabus, we held, “Neither
{¶19} In this case, Miles withdrew the defective referendum petition, attached the required circulator affidavits to 395 of the previously filed 483 part-petitions, and attached circulator affidavits to 3 new part-petitions. The parties agree that under Rose, Miles was authorized to withdraw the defective petition.
{¶20} Once the previously filed petition was withdrawn, there was “nothing before the public office and, therefore, there [was] nothing to be acted upon.” Rose, 90 Ohio St.3d at 232, 736 N.E.2d 886. Consequently,
{¶21} This construction of
{¶22} Moreover, construing
{¶23} Further, this construction of
{¶24} Therefore, invalidating the referendum petition here based on the grounds asserted by respondents serves no public interest or public purpose, including the legislative purpose of
{¶25} Moreover, respondents’ reliance on
{¶26} Based on the foregoing, Miles has established a clear legal right to have McSweeney submit the referendum petition to the city council for consideration and a clear legal duty on the part of McSweeney to do so. Section 50, Columbus Charter. The withdrawal of the defective petition, the attachment of circulator affidavits to the withdrawn petition, and the resubmission of the petition with some new part-petitions is no more a violation of
{¶27} In addition, under Sections 48 and 50 of the charter, Ordinance No. 0754-02 shall not become operative unless it is approved by a majority of voters at the November 5, 2002 election. Therefore, we grant a writ of mandamus to compel McSweeney to submit the referendum petition to the city council at its next regular meeting.
Alternate Claim
{¶28} In so holding, we reject Miles‘s alternate claim that the pertinent statutory and charter provisions should be construed so that the word “petition” does not include circulator statements or affidavits. Miles‘s claim in this regard is meritless.
Attorney Fees
{¶30} In this case, even though respondents’ position is incorrect, an award of attorney fees is not warranted because their interpretation of
Conclusion
{¶31} Based on the foregoing, we grant a writ of mandamus to compel respondent McSweeney to submit the referendum petition to the city council at its next regular meeting. Columbus Ordinance No. 0754-02 will not become operative unless it is approved by a majority of voters at the November 5, 2002 election. We further deny relator‘s request for attorney fees.
Writ granted.
MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, RESNICK and PFEIFER, JJ., concur in part and dissent in part.
COOK, J., dissents.
DOUGLAS, J., concurring in part, dissenting in part.
{¶32} I concur with the majority on the main issue discussed in the opinion. I respectfully dissent as to the denial of attorney fees to Miles. To compel this relator to absorb the cost of seeking redress through the courts when his cause is legally correct will, I believe, discourage other similarly situated citizens from
RESNICK and PFEIFER, JJ., concur in the foregoing opinion.
COOK, J., dissenting.
{¶33} In State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio St.3d 229, 736 N.E.2d 886, a majority of this court permitted a referendum petitioner to withdraw separately filed petitions, combine them, and resubmit them as one instrument. That holding undercut the requirements of
{¶34}
Kegler, Brown, Hill & Ritter and Thomas W. Hill; Phillip L. Harmon, for relator.
Janet E. Jackson, Columbus City Attorney, Daniel W. Drake and Susan E. Ashbrook, Assistant City Attorneys, for respondents.