2003 Ohio 5273 | Ohio Ct. App. | 2003
{¶ 2} On December 2, 2002, residents of the proposed school district filed petitions with relator seeking a referendum on the resolution. [Relator's evidence, Jenkins affidavit, ¶ 11] R.C.
{¶ 3} Subsequently, respondent found that of 1108 signatures on 54 separate petitions, 697 were invalid, 647 of these because they failed to state the signer's city, village, or township of residence. [Respondent's Exhibits 2 and 4] The 647 signatures were disqualified on authority of instructions from the Secretary of State, the state's chief election officer. The instructions state in part that, "The signer must have entered his street and number, or RFD, and his city, village, or township." [Respondent's Exhibit 3] The number of signatures invalidated for this reason caused the petitions to have fewer valid signatures than the required number — 35% of the qualified voters voting at the last general election. If allowed, the 647 signatures invalidated for this reason would have been sufficient, when added to the 411 valid signatures, to exceed the required 35%. [Jenkins affidavit, ¶¶ 15-16]
{¶ 4} On December 9, 2002, relator's governing board adopted Resolution No. 373-02, stating, in part: "* * * BE IT THEREFORE RESOLVED, in accordance with the provisions of Section
{¶ 5} The effect of the resolution was to reject respondent's disqualification of the 647 signatures. Nevertheless, on December 16, 2002, respondent voted to reject the petitions "due to lack of valid signatures required by Ohio Revised Code
{¶ 6} On January 29, 2003, relator brought this action to compel respondent to place the issue on the May 6, 2003 primary ballot. Relator contends that R.C.
{¶ 7} On February 10, 2003, respondent filed a motion to dismiss the complaint for failure to state a claim on which relief may be granted. By entry of May 5, 2003, we converted the motion to a motion for summary judgment and permitted the parties to file evidence pursuant to Civ.R. 56(C) and to file supplemental argument, if desired. The parties did so. Accordingly, the cause is before the court on respondent's motion for summary judgment.
{¶ 8} Civ.R. 56(C) provides, in part: "* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor."
{¶ 9} Because we find that respondent has established that it, and not relator, has the final authority to determine the sufficiency and validity of referendum and petitions submitted to respondent pursuant to R.C.
{¶ 10} Respondent argues that it has the ultimate authority to determine the sufficiency and validity of referendum petitions, citing R.C.
{¶ 11} R.C.
{¶ 12} Under R.C.
{¶ 13} In support of the primacy of these statutes, respondent cites State ex rel. Williams v. Iannucci (1988),
{¶ 14} After receiving the petitions, the city auditor refused to certify the petitions, charging facial deficiencies in the petition, failure to file a required document with the petitions, and unconstitutionality of the proposed ordinance. The Supreme Court held: "* * * we find a basic lack of authority for the auditor to refuse to certify the text of a proposed ordinance for any of the objections he has made. R.C.
{¶ 15} Thus, the court held that authority to "certify" petitions to the board of elections conferred only a "ministerial duty," in effect circumscribing the auditor's authority.
{¶ 16} In 1991, the General Assembly amended R.C.
{¶ 17} Relator dismisses Williams and Sinay on grounds that they are municipal cases and not on point. However, we believe that the cases clearly demonstrate that in this analogous situation, in which R.C.
{¶ 18} Relator argues, contra, that R.C.
{¶ 19} Relator relies for the meaning of this passage on 1962 OAG 3196, which concluded: "1. The duty of determining the sufficiency of the form, content, and signatures of a petition of referendum filed under Section
{¶ 20} Relator makes various arguments for its view of its authority under R.C. 3511.26. We consider each.
{¶ 22} Relator further argues that "[n]othing in R.C.
{¶ 24} Relator's argument here has some surface attraction. Nevertheless, as stated above, it places too much reliance on its authority to "certify" the petitions as being conclusive. "Certify" is, at best, ambiguous in this context. Thus, if six conceptually related statutes exist, and five clearly delineate authority, but a sixth is ambiguous, it does not necessarily follow that the ambiguous statute must mean the opposite of the clear ones, although it is some evidence a different meaning may have been intended.
{¶ 25} R.C.
{¶ 26} Accordingly, we reject this argument.
{¶ 28} Relator construes this section to mean that "shalllocation of the signer's voting residence. Thus, the municipal corporation or township of residence are primary to that purpose and the street and number inside a municipality, and rural route number or post office address outside, also required, are refinements to determining that location.
{¶ 29} We find support for this conclusion in respondent's Exhibit 3, attached to the affidavit of Lois Nichols, Director of the Adams County Board of Elections. The exhibit is a directive from the Secretary of State entitled: "INSTRUCTIONS AND CODE SYMBOLS FOR VALIDATINGSIGNATURES ON PETITIONS, and states, in part: "NANo address. The signer must have entered his street and number, or RFD, and his city, village, or township. He need not have entered the name of his county if it can be determined what county he is from by the other information given."
{¶ 30} "[W]hen an election statute is subject to two different, but equally reasonable, interpretations, the interpretation of the Secretary of State, the state's chief election officer, is entitled to more weight." State ex rel. Herman v. Klopfleisch (1995),
{¶ 31} In further support of its position, relator cites Blakemorev. Nasal (1991),
{¶ 32} However, the case indicates the opposite conclusion that relator draws from it. Clearly, if the case had involved multiple jurisdictions, as the instant case does, the director presumably would not have been able to locate the signers' voting residences without difficulty, and the court would have been hard-pressed to find sufficient compliance with R.C.
{¶ 33} Accordingly, we reject this argument.
{¶ 35} Sinay, supra, presents a clear example of construing a general provision and a special provision so that effect is given to both. In Sinay, the special provision, R.C.
{¶ 37} Relator also argues that, assuming it had authority to accept or reject the signatures in question, it did not abuse its discretion by accepting them. We have already determined that R.C.
{¶ 38} Thus, we find that none of relator's challenges establishes its clear right to approve the sufficiency and validity of the referendum petitions, or shows that respondent has a clear duty to approve the petitions. On the contrary, we find that respondent has authority to determine the sufficiency of the relevant signatures and, ultimately, to determine the sufficiency and validity of the referendum petitions. Accordingly, we find that respondent is entitled to summary judgment as a matter of law, and its motion for summary judgment is GRANTED. Having granted respondent's motion for summary judgment, it follows that relator has not established the clear right to relief required for a writ of mandamus to issue. State ex rel. Burger v. McMonagle (1983),
Harsha, J. Kline, J.: Concur in Judgment and Opinion.