THE STATE EX REL. ROSE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS ET AL.
No. 00-1593
Supreme Court of Ohio
Decided October 5, 2000
90 Ohio St.3d 229 | 2000-Ohio-65
Submitted September 26, 2000
[Cite as State ex rel. Rose v. Lorain Cty. Bd. of Elections, 2000-Ohio-65.]
Elections—Mandamus sought to compel Lorain County Board of Elections and Columbia Township to place a referendum issue involving a zoning amendment approved by the Columbia Township Board of Trustees on the November 7, 2000 election ballot—Neither
Neither
IN MANDAMUS.
{¶ 1} On May 1, 2000, the Columbia Township Board of Trustees approved Amendment 00-02 to the Columbia Township Zoning Resolution. The amendment added alternate members to both the Columbia Township Zoning Commission and the Columbia Township Board of Zoning Appeals and authorized the zoning inspector to approve uses to fulfill the intent of certain zoning districts.
{¶ 2} On May 26, relator Thomas J. Rose, the sole petitioner for the referendum of the township zoning amendment, filed a petition with the Clerk of Columbia Township, requesting that the amendment be submitted to the electors at the November 7, 2000 general election for a referendum. The first petition
{¶ 3} On May 31, Rose attempted to withdraw his first and second referendum petitions and resubmit them as one petition, consisting of eleven part-petitions and containing one hundred eighty-nine valid signatures. Rose‘s attorney specified that in doing so, Rose had “elected his right to amend the petition” and that his eleven part-petitions were being resubmitted ”as amended.” (Emphasis added.)
{¶ 4} On June 6, the Columbia Township Board of Trustees submitted the petitions to respondent Lorain County Board of Elections with its recommendation that the board of elections find the petitions insufficient because the first petition did not contain sufficient valid signatures, the second petition could not be filed, and the petitions could not be withdrawn and resubmitted as one document. On July 25, the board of elections declined to consider the issue and returned the petitions to the board of trustees.
{¶ 5} On August 11, relators, Rose and other taxpayer-residents of Columbia Township, demanded that the board of elections certify the township zoning amendment for the November 7, 2000 election ballot. On August 21, following a hearing, the board of elections rejected relators’ demand.
{¶ 6} On September 1, relators filed this action for a writ of mandamus to compel respondents, the board of elections and Columbia Township, to place the amendment on the November 7, 2000 election ballot. Respondents filed an answer, and the parties filed evidence and briefs pursuant to the expedited election schedule set forth in S.Ct.Prac.R. X(9).
{¶ 7} This cause is now before the court upon a consideration of the merits of relators’ mandamus claim.
Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.
Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondents.
LUNDBERG STRATTON, J.
{¶ 8} Relators assert that they are entitled to the requested extraordinary relief in mandamus to compel the board of elections and the township to place the referendum issue on the November 7 election ballot. Relators contend that the board of elections abused its discretion and disregarded applicable law by refusing to place the referendum issue on the November 7 election ballot. According to relators, Rose had a common-law right to withdraw his first and second petitions and resubmit them as one petition.
{¶ 9} We are cognizant that “[t]he initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.”
{¶ 10}
{¶ 11} In construing
{¶ 12}
“All * * * petitions presented to or filed with * * * a board of elections * * * for the holding of an election on any issue shall, in addition to meeting the other specific requirements prescribed in the sections of the Revised Code relating thereto, be governed by the following rules:
” * * *
“(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office.
” * * *
“(K) All separate petition papers shall be filed at the same time, as one instrument.” (Emphasis added.)
R.C. 3501.38(I)
{¶ 14}
{¶ 15} In this case, the petitioner did not alter the petitions in any way. He simply refiled the same petitions that had been previously signed by the voters. Therefore, since the petitioner only withdrew and refiled the petitions without alteration, we conclude that
{¶ 16} Accordingly, since
R.C. 3501.38(K)
{¶ 17} Respondents also claim that
{¶ 18} The respondents rely on our holdings in at least three prior cases that appear to prohibit withdrawal and refiling of petitions. First, in State ex rel. Weaver v. Wiethe (1965), 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, a candidate for city council filed a nominating petition consisting of several separate petition papers containing an insufficient number of valid signatures. After the board of elections took action on his petition and notified the candidate of the insufficiency, he attempted to withdraw his nominating petition to obtain additional valid signatures on additional petition papers and to refile at a later time. We held that the city charter, which read much like
{¶ 19} Second, in State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879, a candidate filed several
{¶ 20} Finally, in State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio St.3d 186, 602 N.E.2d 631, a candidate for county court judge submitted a petition containing insufficient valid signatures on July 2, 1992. Upon learning of the deficiency, the candidate filed additional petition papers with sufficient valid signatures on August 4, 1992. The board of elections accepted the second filing. We granted a writ of prohibition and ordered the board of elections to remove the candidate‘s name from the ballot. Under
{¶ 21} We agree that a candidate may file only one instrument. However, we find that Weaver is inconsistent with the intent of the General Assembly in
{¶ 22} We recognize the maze of technical requirements through which candidates and petitioners must travel in order to comply with filing requirements. Thus when a candidate or petitioner files a petition and then learns before the filing deadline that the petition has some deficiency, the process is benefited, rather than harmed, by permitting the petitioner the opportunity to cure the defect by withdrawing the petition and filing a newly signed petition. Our previous interpretation did not “liberally construe” the process in favor of referenda. By allowing a petitioner to correct any technical mistakes by a withdrawal and resubmission of a combined but unaltered petition by the filing deadline, or by withdrawing previously filed petitions and submitting fresh petitions signed anew by the voters, we promote the exercise of such power rather than the prevention or obstruction of that power. Christy, supra, 77 Ohio St.3d at 40, 671 N.E.2d at 5. Therefore, we conclude that neither
{¶ 23} In this case, Rose withdrew his petitions, combined them, and resubmitted them as one instrument. Rose did not alter, correct, or add to the petitions. He submitted the combined petitions at the same time, as one unaltered document, as per
{¶ 24} Therefore, because we overrule our previous line of cases and modify the law accordingly, we conclude that under the plain language of the provisions,
{¶ 25} Accordingly, the writ of mandamus is hereby granted.
Writ granted.
MOYER, C.J., F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS and RESNICK, JJ., concur separately.
COOK, J., dissents.
DOUGLAS, J., concurring.
{¶ 26} I concur in the well-reasoned majority opinion. I write separately only for the purpose of reemphasizing the sacrosanct character of the right of referendum, which has deep roots in our country‘s history.2 “When the people of Ohio amended their state [C]onstitution one of the primary, paramount purposes to be effected in the amendment was to give the people of Ohio the final word by referendum upon legislative acts * * *. This right of referendum is stated and safeguarded again and again in the [C]onstitution. Indeed one cannot read the Constitution of 1912 without being persuaded again and again that it was the systematic studied effort of the people to check the arbitrary power of the general assembly and of our courts in the administration of the people‘s government.
{¶ 27} “In addition to the referendum provided upon laws of a general nature the Constitution gave specifically to the people of the cities the right of referendum upon all ‘additional laws’ affecting their government before they should become operative in the cities.” Cleveland v. Pub. Util. Comm. (1919), 100 Ohio St. 121, 153, 125 N.E. 864, 873 (Wanamaker, J., dissenting).
{¶ 28} Referendum is a right of the people to have legislative enactments submitted for their approval or rejection at an election. In this manner, a referendum is a mechanism for the citizens of a community to assert their interests and maintain a check over their elected representatives. Eastlake v. Forest City Enterprises, Inc. (1976), 426 U.S. 668, 678, 96 S.Ct. 2358, 2364, 49 L.Ed.2d 132, 140. Thus, procedural limitations on the referendum should be interpreted as narrowly as possible to preserve the constitutional right to referendum.
{¶ 29} Finally, not one of the cases that were cited in support of respondents’ position involved a referendum petition. For this reason, I believe that the cases cited by respondents are distinguishable from the case at bar. Accordingly, while I would distinguish rather than overrule the cases overruled by the majority, I nevertheless concur.
RESNICK, J., concurs in the foregoing concurring opinion.
COOK, J., dissenting.
{¶ 30} Because the majority opinion permits what the statute and decisional law forbids, I must respectfully dissent from the majority‘s decision to grant the writ.
{¶ 31} As the majority notes, even Rose‘s attorney characterized Rose‘s conduct as electing to use his “right to amend the petition” and resubmit the eleven part-petitions ”as amended.” (Emphasis added.) “Amend” is defined as “to put right,” “to change or modify in any way for the better,” or “to alter * * * formally by modification, deletion, or addition.” Webster‘s Third New International Dictionary (1986) 68. Therefore, Rose‘s “amendment” is simply another word for alteration, correction, or addition—actions that are expressly precluded by the plain language of
{¶ 32} Under
{¶ 33} The majority cites the axiom that it is the general duty of courts to liberally construe municipal referendum petitions to permit rather than to preclude the exercise of the power of referendum. Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 40, 671 N.E.2d 1, 5. But given the clarity of the language of the statutory provisions at issue here, we need not look to interpretative rules. See State ex rel. Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182, 186, 724 N.E.2d 771, 774. The majority‘s construction contravenes the statutory language by allowing relators to amend and refile petitions that
{¶ 34} The majority permits “alterations, corrections, or additions” after filing by characterizing what occurred here as a “withdrawal.” This approach diminishes the finality that the statutory scheme attaches to filed petitions. This diminished legal significance seems irreconcilable with provisions of
{¶ 35} This majority opinion will also generate confusion regarding
{¶ 36} The single filing that
{¶ 37} Accordingly, I would hold that the board of elections neither abused its discretion nor clearly disregarded applicable law in denying relators’ demand to place the referendum issue on the November 7, 2000 election ballot. Only relators’