THE STATE EX REL. TWITCHELL ET AL. v. SAFERIN ET AL.
No. 2018-1238
SUPREME COURT OF OHIO
September 21, 2018
Slip Opinion No. 2018-Ohio-3829
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Twitchell v. Saferin, Slip Opinion No. 2018-Ohio-3829.]
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. 2018-OHIO-3829
THE STATE EX REL. TWITCHELL ET AL. v. SAFERIN ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Twitchell v. Saferin, Slip Opinion No. 2018-Ohio-3829.]
Mandamus—Writ of mandamus sought to
(No. 2018-1238—Submitted September 13, 2018—Decided September 21, 2018.)
IN MANDAMUS.
Per Curiam.
{¶ 1} In this expedited election case, relators, Bryan Twitchell, Julian C. Mack, and Sean M. Nestor, seek a writ of mandamus to compel respondent Lucas County Board of Elections1 to place a proposed charter amendment on the November 6, 2018 general-election ballot. For the reasons set forth below, we deny the writ.
Background
{¶ 2} On August 6, 2018, Twitchell, Mack, and Nestor submitted part-petitions in support of a proposed amendment to the Toledo City Charter entitled the Lake Erie Bill of Rights (“LEBOR”). Thе LEBOR would declare that Lake Erie and the Lake Erie watershed “possess the right to exist, flourish, and naturally evolve” and that the citizens of Toledo have a right to a clean and healthy environment, including the Lake Erie ecosystem. Section 2 would make it unlawful for a corporation or government to violate the rights secured by the LEBOR and declares that, within the city of Toledo, any corporate license or privilege that would violate these rights would be void. Section 3 would make it a crime to violate the provisions of the LEBOR, would allow the city of Toledo, or any resident, to “enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas,” and would recognize the right of the Lake Erie ecosystem itself to enforce its rights in an action prosecuted by the city or any resident of the city. Finally, Section 4 purports to nullify any state laws or agency rules that conflict with the provisions of the LEBOR.
{¶ 3} The Lucas County Board of Elections verified a sufficient number of petition signatures to qualify the measure for the ballot. However, on August 28, 2018, the board voted 4-0 to refuse to place the charter amendment on the ballot on the ground that it contained provisions that are beyond the authority of the city to enact. Specifically, the board followed the recommendation of its legal counsel to reject the petition on the grounds that (1) it creates a new cause of action and (2) it confers jurisdiction on the common pleas court to hеar the new cause of action.
{¶ 4} On August 30, Twitchell, Mack, and Nestor filed the present expedited election complaint. The parties have filed briefs and evidence in accordance with the calendar for expedited election cases in S.Ct.Prac.R. 12.08, and we have received two amicus briefs in support of respondents.
Analysis
{¶ 5} To be entitled to a writ of mandamus, a relator must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide that relief, and (3) the lack
{¶ 6} Twitchell, Mack, and Nestor have not shown that the elections board abused its discretion in keeping the LEBOR off the ballot. The elections board relied on this court‘s decision in State ex rel. Flak v. Betras, 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, which held that elections boards are authorized “‘to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative,‘” id. at ¶ 11, quoting State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9. We do not find an abuse of discretion or disregard of the law in the election board‘s reliance on Flak given that Flak also involved proposed amendments to a city charter. “County boards of elections are of statutory creation, and the members thereof in the performance of their duties must comply with applicable statutory requirements.” State ex rel. Babcock v. Perkins, 165 Ohio St. 185, 187, 134 N.E.2d 839 (1956). It was not unreasonable for the elections board to look to Flak for guidance on its statutory duties.
{¶ 7} Twitchell, Mack, and Nestor argue that the elections board should have relied on this court‘s decision in State ex rel. Espen v. Wood Cty. Bd. of Elections, ___ Ohio St.3d ___, 2017-Ohio-8223, ___ N.E.3d ___. But that case did not result in a court majority. Thus, the elections board did not improperly disregard Espen.
{¶ 8} Twitchell, Mack, and Nestor also arguе that the authority granted to elections boards in
{¶ 9} Because Twitchell, Mack, and Nestor have not demonstrated that the board of elections abused its discretion when it relied on Flak to deny the request to place the LEBOR charter amendments on the ballot, we deny the writ.
Writ denied.
O‘CONNOR, C.J., and FRENCH and DEGENARO, JJ., concur.
O‘CONNOR, C.J., concurs, with an opinion.
KENNEDY, J., concurs in judgment only, with an opinion joined by O‘DONNELL and DEWINE, JJ.
O‘DONNELL, J., joins Justice Kennedy‘s opinion and recognizes Justice Fischer‘s position that portions of H.B. 463 are
FISCHER, J., dissents, with an opinion.
O‘CONNOR, C.J., concurring.
{¶ 10} I concur with the per curiam opinion that the Lucas County Board of Elections did not abuse its discretion in refusing to place the charter amendment on the ballot and therefore relators, Bryan Twitchell, Julian C. Mack, and Sean M. Nestor, have failed to establish that they are entitled to a writ of mandamus. I write separately to address the impropriety of reaching the issues raised by the opinion concurring in judgment only.
{¶ 11} “While there may be exceptions, it is not generally the proper role of this court to develop a party‘s arguments.” In re Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19. Indeed, the opinion concurring in judgment only would not only rewrite significant constitutional provisions, it would sua sponte declare portions of the Toledo city charter to be in conflict with the Ohio Constitution, all without the slightest input from the parties. We should adhere to this court‘s long-standing policy not to address issues not raised by the parties. Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. We have recognized that “justice is far better served” when we have the benefit of the parties’ briefing and arguments before we make a final determination. Id.; see also Apple Group, Ltd. v. Granger Twp. Bd. of Zoning Appeals, 144 Ohio St.3d 188, 2015-Ohio-2343, 41 N.E.3d 1185, ¶ 52 (Kennedy, J., dissenting) (critiquing the majority opinion‘s reliance in that case on an issue that was not appealed to this court, that “the parties did not brief or argue,” and that was decided “without relying on experts or authoritative statements and without considering the unique needs” of thе parties).
{¶ 12} As recently as last week, this court denied a writ of mandamus by relying, in part, on State ex rel. Flak v. Betras, 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329. Today, the opinion concurring in judgment only—which is advanced by justices who concurred in the decision in Flak—sua sponte concludes that our prior decisions were in error. But nothing has changed in the short time since Flak was announced; not the relevant statutes or constitutional provisions, not the parties’ arguments, and not the makeup of this court. To so quickly abandon our prior case law without the benefit of briefing by the parties, as the opinion concurring in judgment only suggests that we do, would leave the law vulnerable to the whims of those sitting on the bench, rather than moored to the principled and disciplined approach that is the сornerstone of an independent judiciary.
{¶ 13} That is not to say that this court should be so tied to precedent that it would reject an opportunity to correct an error. But it is a frivolous use of judicial authority to sua sponte abandon our precedent, and act as both advocate and arbiter without the input of the parties, particularly in the context of expedited election cases, which involve such critical issues as the power reserved to the people by our state constitution to participate in their government.
{¶ 14} Indeed, the opinion concurring in judgment only raises more questions than it answers in its effort to sua sponte alter the court‘s jurisprudence in this line of election cases. For example, it assumes that a proposed charter amendment initiated by the voters is not an “initiative” at all, that the voters’ power to amend a charter arises exclusively from
{¶ 15} Additionally, the opinion concurring in judgment only concludes that the Ohio Constitution requires the Toledo city council to approve an ordinance placing the initiated charter amendment on the ballot and that absent such an ordinance, relators’ complaint for a writ of mandamus against the board of elections is premature. The opinion then goes so far as to conclude that the Toledo city charter is inconsistent with the Ohio Constitution. But these arguments have not been presented to this court. And the question whether the process of submitting a voter-initiated charter amendment to the electors arisеs exclusively under
{¶ 16} It is the court‘s role to act as an arbiter, not an advocate. Here, the opinion concurring in judgment only exceeds the bounds of our judicial authority. We should treat such attempt with circumspection.
KENNEDY, J., concurring in judgment only.
{¶ 17} I agree with the majority that relators, Bryan Twitchell, Julian C. Mack, and Sean M. Nestor, have failed to establish that they have a clear legal right to issuance of a writ of mandamus against thе board of elections. I write separately, however, to urge that we clear up the confusion created by our recent caselaw, which has begun treating a petition to amend a municipal charter pursuant to
Power of Initiative and Referendum
{¶ 18}
{¶ 19} In Sensible Norwood, the board of elections refused to place on the ballot a proposed municipal ordinance that would decriminalize marijuana and hashish in the city of Norwood. We noted that a municipality has authority to define misdemeanor offenses but that the power to define and prescribe рunishment for felonies is vested in the General Assembly. Id. at ¶ 10. And because the power to designate felonies is not a matter that municipalities are “authorized by law to control by legislative action,”
{¶ 20} The power of a municipality or of the people of a municipality to adopt and amend a municipal charter, however, flows from a separate constitutional provision.
Power to Adopt or Amend a Municipal Charter
{¶ 21}
Amendments 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. The submission of proposed amendments to the electors shall be governed by the requirements of section 8 as to the submission of the question of choosing a charter commission * * *. If any such amendment is approved by a majority of the electors voting thereon, it shall become a part of the charter of the municipality.
In turn,
{¶ 22} We have therefore explained that “‘Section 9 of Article XVIII, which incorporates the requirements of Section 8, allows, and on petition by ten percent of the electors, requires, the legislative authority of any city, e.g., city council, to “forthwith” authorize by ordinance an election on the charter amendment issue.’ (Emphasis sic.)” State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 23, quoting State ex rel. Commt. for Charter Amendment Petition v. Avon, 81 Ohio St.3d 590, 592, 693 N.E.2d 205 (1998). “The ‘manifest object’ of
{¶ 23} We have held that in placing a proposed amendment to a municipal charter on the ballot, “[the] board of elections has nothing but a ministerial role under the Constitution.” State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections, 67 Ohio St.3d 334, 337, 617 N.E.2d 1120 (1993). And “[s]ince the Constitution requires that the admission [sic, submission] of the charter amendment initiative be made by the legislature, it follows that the legislature need not make the submission unless satisfied of the sufficiency of the petitions and that all statutory requirements are fairly met.” Morris v. Macedonia City Council, 71 Ohio St.3d 52, 55, 641 N.E.2d 1075 (1994). “‘This function being reposed by the Constitution in the legislative branch of the government, it dоes not lie in the power of the people of the municipality to transfer it to an arm of the executive branch, viz. the board of elections.‘” Semik at 336, quoting State ex rel. Hinchcliffe v. Gibbons, 116 Ohio St. 390, 395, 156 N.E. 455 (1927). For this reason, “the board cannot be granted decisive authority in this area.” Id. at 337.
{¶ 24} Our caselaw had been consistent on this point since we decided Hinchcliffe in 1927. Recently, however, in reviewing mandamus actions involving ordinances to amend municipal charters, we began applying our caselaw construing the power of initiative and referendum as if
{¶ 25} In State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, we addressed the board of elections’ authority to review an ordinance proposing а charter amendment, but we did not even mention
{¶ 26} We continued our error in State ex rel. Flak v. Betras, 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, in which we considered whether the Mahoning County Board of Elections had a clear legal duty to place two proposed charter amendments on the ballot. The Youngstown city council had unanimously passed ordinances instructing the board to place the proposed amendments on the ballot, but the board refused to do so on the grounds that the amendments contained provisions that exceeded the scope of the city‘s power to enact by initiative. Id. at ¶ 7. In reviewing а mandamus action challenging that decision, we again relied on
{¶ 27} We relied on our faulty reasoning in Flak in State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections, ___ Ohio St.3d ___, 2018-Ohio-1602, ___ N.E.3d ___. However, our discussion of Flak did not affect the outcome in Khumprakob, because we held that the board of elections abused its discretion in finding that the amendment exceeded the city of Youngstown‘s legislative power. We nonetheless assumed that a charter amendment involves the power to initiate legislation controlled by
{¶ 28} The majority today apparently recognizes that our reasoning in Flak is flawed, because the majority does not actually apply that decision to this case but rather concludes that “[i]t was not unreasonable for the elections board to loоk to Flak for guidance on its statutory duties,” majority opinion at ¶ 6. But the board of elections had nothing but a ministerial role in placing the proposed charter amendment on the ballot. Semik, 67 Ohio St.3d at 337, 617 N.E.2d 1120. It therefore had no discretion to exercise, and the reasonableness of its reliance on Flak is irrelevant. And more fundamentally, we should not abdicate the judicial responsibility to “say what the law is,” Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803), and permit the board of elections to decide ballot access by applying whichever of our conflicting lines of authority supports the desired result.
{¶ 29} Here, the board of elections concluded that the proposed charter amendment exceeds the scope of the municipality‘s legislative authority to enact through initiative pursuant to
The authority and procedure for approving an amendment to a municipal charter are found in Article XVIII, Section 9 of the Ohio Constitution. * * *
An amendment to a charter may be submitted to the electors by one of the two following methods:
i. Two-thirds vote of the legislative authority of the municipality.
ii. A petition containing the full text of the proposed amendment and signed by 10 percent of the
electors of the municipality. The filing of a valid and sufficient petition requires the legislative authority to pass an ordinance ordering the board of elections to submit the amendment to the electors. The municipal legislative authority determines the sufficiency and validity of a petition to amend a charter. The board of elections’ initial role in reviewing the petition is strictly ministerial; i.e., determining the sufficiency and validity of the signatures and reporting its findings to the legislative authority.
(Footnotes omitted.)
{¶ 30} A сharter amendment is not an exercise of the people‘s power to initiate legislation—i.e., to enact an ordinance—but rather is the municipality‘s authority to establish and amend its form of government through the action of the municipality‘s legislative branch. Accordingly, I would apply
{¶ 31} The concurring opinion asserts that this opinion “assumes that a proposed charter amendment initiated by the voters is not an ‘initiative’ at all, that the voters’ power to amend a charter arises exclusively from Article XVIII, Sections 7, 8 and 9, of the Ohio Constitution, that Article II, Section 1f, of the Ohio Constitution has no application to a proposed charter amendment initiated by the people, and that a board of elections’ duties are different when presented with a municipal-charter amendment than when it is presented with other voter-initiated efforts.” Concurring opinion at ¶ 14. Of course, had the framers intended for the people of a municipality to adopt and amend a municipal charter through the right of initiative reserved by
{¶ 32} It is a general rule of constitutional interpretation that when a specific constitutional provision applies, it controls over a more general provision. State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 26; Sacramento Cty. v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
{¶ 33} The concurring opinion also asserts that “Article XVIII, Section 9 requires a ‘legislative authority’ (in this case, city council) to submit a qualifying initiative to the ballot, but it does not mandate how that is to be accomplished (by passage of an ordinance, certification by the clerk of city council, or by another method).” (Emphasis sic.) Concurring opinion at ¶ 15. That claim disregards the plain language of
{¶ 34} And it is peculiar that in writing to uphold the importance of stare decisis,
{¶ 35} Last, I recognize that it would be helpful to order supplemental briefing on these questions, but the shortened timeline of an expedited election action make that impractical if not impossible—the deadline for preparing absentee ballots as required by federal law,
{¶ 36} Despite the majority‘s misapplication of
Any amendment to this Charter may be submitted to the electors of the City for adoption by resolution of the Council, two-thirds of the members thereof concurring, and 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. * * * It shall be the duty of the Clerk to notify the election authorities of the adoption by the Council of a resolution for submission of a proposed amendment, or of his or her
determination that a sufficient petition for submission has been filed with him or her; and the Clerk shall request the election authorities to provide for an election as aforesaid.
The charter calls for the council to pass a “resolution” to amend the charter on its own initiative. However, when petitions are filed seeking an amendment, the charter requires the clerk to submit the amendment to the board of elections if the clerk finds the petitions to be sufficient—without council passing an ordinance instructing the board to place the charter amendment on the ballot. The Toledo City Charter is therefore inconsistent with the procedure required by
{¶ 37} Mandamus will not lie in this case, because until the Toledo City Council passes an ordinance, the board of elections has no duty to place the charter amendment on the ballot. State ex rel. Beard v. Hardin, ___ Ohio St.3d ___, 2018-Ohio-1286, ___ N.E.3d ___, ¶ 34 (lead opinion). “Becausе the council has not passed [an ordinance approving the placement of the amendment on the ballot], relators have no claim against the board of elections.” Id.
{¶ 38} Moreover, in contrast to the dissenting opinion‘s argument that this court should address whether 2016 Sub.H.B. No. 463 (“H.B. 463”), which amended
Conclusion
{¶ 39} “[T]he public is not under the illusion that we are infallible. [There is] little harm in admitting that we made a mistake * * *” Dickerson v. United States, 530 U.S. 428, 464, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting). But recognizing an error in a prior decision is only the first step; sooner or later, we also have to rectify it. As United States Supreme Court Justice Antonin Scalia explained,
the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it.
South Carolina v. Gathers, 490 U.S. 805, 824, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) (Scalia, J., dissenting). We therefore should overrule bad precedent at the earliest opportunity to avoid detrimеntal reliance on it. This is especially true when the bad precedent resulted from inadvertence and runs counter to the plain language of the Ohio Constitution and almost a century of settled caselaw construing it.
{¶ 40} This case brings us to that crossroads, because it is now apparent that there are two irreconcilable lines of case authority interpreting the Ohio Constitution‘s procedure for amending a municipal city charter. One line of authority dates from 1927 and holds that
{¶ 41} Contrary to statements in our recent decisions,
{¶ 42} For these reasons, I concur in judgment only.
O‘DONNELL and DEWINE, JJ., concur in the foregoing opinion.
FISCHER, J., dissenting.
{¶ 43} I respectfully dissent and would hold that portions of 2016 Sub.H.B. No. 463 (“H.B. 463”) are unconstitutional for the reasons stated in my separate opinion in State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections, ___ Ohio St.3d ___, 2018-Ohio-1602, ___ N.E.3d ___, ¶ 42 (Fischer, J., concurring in judgment only).
I. The Constitutionality of
{¶ 44} As I have previously discussed, I believe that
II. The Court Could Interpret
{¶ 45} In this case, relators, Bryan Twitchell, Julian C. Mack, and Sean M. Nestor, argue that the Board of Election‘s action violates the separation-of-powers doctrine and that this court cannot allow the General Assembly to transfer a “take-no-prisoners veto power” from the judicial branch to the executive branch.
{¶ 46} “Courts must liberally construe statutes in order to avoid constitutional infirmities.” State ex rel. Thompson v. Spon, 83 Ohio St.3d 551, 555, 700 N.E.2d 1281 (1998), citing State ex rel. McGinty v. Cleveland City School Dist. Bd. of Edn., 81 Ohio St.3d 283, 288, 690 N.E.2d 1273 (1998). Theorеtically, the court need not go so far as to find the statute unconstitutional. It is possible that
{¶ 47} In a mandamus case such as this, we review an election official‘s decision to exclude a ballot measure from the ballot for an abuse of discretion. See State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419; State ex rel. Coover v. Husted, 148 Ohio St.3d 332, 2016-Ohio-5794, 70 N.E.3d 587. In this case, the majority determines that the board of elections did not abuse its discretion when it rejected the ballot measure on the grounds that the proposed amendment to the city charter created a new cause of action and conferred
{¶ 48} We have applied this de novo standard of review in cases in which we review legal determinations made by executive agencies. For example, in cases in which we review decisions made by the Board of Tax Appeals (“BTA”), we consider legal issues de novo. Akron City School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision, 139 Ohio St.3d 92, 2014-Ohio-1588, 9 N.E.3d 1004, ¶ 10-11. We “will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.” Gahanna-Jefferson Local Sсhools Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d 231, 232, 754 N.E.2d 789 (2001). In these and many similar cases, we have implicitly accepted that the BTA‘s initial determination of a purely legal question does not violate the separation-of-powers doctrine.
{¶ 49} I accordingly encourage the court to consider whether we should apply a de novo standard of review when reviewing a legal determination made by a board of elections pursuant to
III. Conclusion
{¶ 50} Thus, although I dissent in this case, I believe there may be common ground upon which this court can come to a consensus in the future regarding the constitutional issue that is presented, but left unresolved, in this case.
Terry J. Lodge and Jensen Silvis, for relators.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for respondents.
Chad A. Endsley, Leаh F. Curtis, and Amy M. Milam, urging denial of the writ for amici curiae Ohio Farm Bureau Federation and Lucas County Farm Bureau.
Barrett, Easterday, Cunningham & Eselgroth, L.L.P., David C. Barrett Jr., Carolyn Eselgroth, and Amanda Stacy Hartman, urging denial of the writ for amici curiae Ohio Soybean Association, Ohio Corn & Wheat Growers Association, Ohio Poultry Association, Ohio Cattlemen‘s Association, Ohio Dairy Producers Association, Ohio Pork Council, Ohio Sheep Improvement Association, and Ohio Agribusiness Association.
Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, urging denial of the writ for amici curiae Affiliated Construction Trades Ohio Foundation, Ohio Chamber of Commerce, Ohio Oil and Gas Association, Ohio Chemistry Technology Council, and American Petroleum Institute.