State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. HAZEL ET AL. V. CUYAHOGA COUNTY BOARD OF ELECTIONS ET
AL.
[Cite as State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections (1997), ___ Ohio
St.3d ___.]
Elections -- Mandamus compelling Cuyahoga County Board of Elections to
submit proposed building code ordinance to the city of Parma electorate
at the November 4, 1997 election -- Writ granted, when.

(No. 97-1822 -- Submitted September 22, 1997 -- Decided September 23,
1997.)

IN MANDAMUS and PROHIBITION.

In July 1997, relators, resident electors of the city of Parma, filed an
initiative petition with the Parma auditor. The petition contained over 7,000
signatures and requested that a proposed ordinance be placed on the November 4,
1997 election ballot. The title and text of the proposed ordinance, as set forth in
the initiative petition, provided:

"PART FIFTEEN -- BUILDING CODE be Amended by adding the
following section thereto:

"CHAPTER 1529. General Building Regulations.

"(1529.44) Penal Facilities Acquisition/Construction/Regulation

"(A.) The City of Parma, Ohio may establish, erect, maintain, and regulate a
jail, workhouse, station house, prison, and farm school, so as long as the combined
total number of inmates, prisoners, detainees, or arrestees held throughout the
entire City at anytime, does not exceed 15. [Sic.]

"(B.) The City of Parma shall not maintain any facility which houses for
any period of time an inmate, prisoner, detainee, or arrestee who is not or was not
incarcerated as a result of an offense committed within the boundaries of the City.

"There is an exception in this subsection (B.), for inmates, prisoners,
detainees, or arrestees who are awaiting an appearance before the Parma
Municipal Court; however, such an inmate may not be incarcerated in the facility
for longer than 24 hours.

"(C.) The City of Parma shall not maintain any facility as noted above in
any residentially zoned area or an otherwise zoned area that abuts any residential
area; there is an exception in this subsection (C.), for the current facility that exists
at West 54th Street.

"(D.) All ordinances, resolutions, proclamations, motions and provisions
inconsistent with this Section, and these Subsections (A.), (B.), (C.), (D.), (E.), are
hereby repealed and declared null and void.

"(E.) This section shall be severable if any Subsection, Part, Word or
Application thereof is held invalid for any reason by a court of competent
jurisdiction and the holding of invalidity of any subsection hereunder or word
hereunder shall not have an effect upon the rest of the section hereof."

After holding the initiative petition for at least ten days, the auditor
transmitted a certified copy of the text of the proposed ordinance and the petition
to respondent Cuyahoga County Board of Elections. The board returned the
petition to the auditor with a statement attesting that it contained signatures of the
required number of electors for placement on the ballot. The auditor then certified
the validity and sufficiency of the petition and requested that the board place the
proposed ordinance on the November 4, 1997 election ballot.

On August 5, 1997, Walter A. Savage filed a written protest with the board,
claiming that the petition was invalid and could not be lawfully submitted to the
electorate. Savage set forth the following grounds for his protest:

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"1) The Petition attempts to control administrative actions, and therefore
contravenes Article II, Section 1f of the Ohio Constitution;

"2) The title of the proposed ordinance is omitted, a violation of Section
731.31 of the Ohio Revised Code; the Petition does not present a fair, accurate and
unambiguous question for the electors of Parma, Ohio."

On August 26, the board held a hearing on the protest. At the conclusion of
the hearing, the board sustained the protest and held that the initiative petition was
invalid because it violated the requirement of R.C. 731.31 that initiative petitions
contain a full and correct copy of the title and text of the proposed ordinance.
The board thus refused to place the proposed ordinance on the November 4, 1997
election ballot.

Two days later, relators filed this action. Relators request a writ of
mandamus directing respondents, the board and its members, to submit the
proposed ordinance to the Parma electorate at the November 4, 1997 election and
a writ of prohibition to prevent the board from granting the protest and refusing to
submit the proposal to the Parma electors on the November 4, 1997 election ballot.
Respondents filed an answer and a motion for summary judgment, and the parties
subsequently filed evidence and merit briefs.

This cause is now before the court for consideration of the merits.
__________________

Law Offices of R.A. Pelagalli and Rodger A. Pelagalli, for relators.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Patrick J.
Murphy and Jeffrey I. Sherwin, Assistant Prosecuting Attorneys, for respondents.
__________________

Per Curiam. Relators initially request a writ of mandamus. The board's
decision to uphold the protest will be set aside and a writ of mandamus will issue

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to compel placement of the proposed ordinance on the November 4 ballot if the
board engaged in fraud, corruption, abuse of discretion or clear disregard of
statutes or applicable legal provisions.1 State ex rel. Hawkins v. Pickaway Cty. Bd.
of Elections (1996), 75 Ohio St.3d 275, 277, 662 N.E.2d 17, 19. Relators assert
that the board abused its discretion and acted in clear disregard of applicable law
by refusing to certify the proposed ordinance for the November 4 election ballot.
An abuse of discretion connotes unreasonable, arbitrary, or unconscionable
conduct. State ex rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151, 666
N.E.2d 1134, 1136.

The board determined that the initiative petition was invalid because it
violated the requirement of R.C. 731.31 that each petition part contain a "full and
correct copy of the title and text of the proposed ordinance." Omitting the title
and/or text of a proposed ordinance is a fatal defect because it interferes with the
petition's ability to fairly and substantially present the issue and might mislead
electors. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio
St.3d 289, 292, 649 N.E.2d 1205, 1208.

The board ruled that the requirement of R.C. 731.31 was not satisfied
because the title and text of the proposed ordinance are ambiguous and
misleading. But the board erroneously relies on cases in which the title and/or text
of the ordinance was omitted or which involved the requirement of a summary for
zoning referendum petitions. See State ex rel. Esch v. Lake Cty. Bd. of Elections
(1991), 61 Ohio St.3d 595, 575 N.E.2d 835 (petition did not include title of
proposed ordinance); State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985),
19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153 (petition did not include title and
text of county resolution sought to be repealed); Shelly & Sands, Inc. v. Franklin
Cty. Bd. of Elections (1984), 12 Ohio St.3d 140, 12 OBR 180, 465 N.E.2d 883

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(zoning referendum petition summary); Markus v. Trumbull Cty. Bd. of Elections
(1970), 22 Ohio St.2d 197, 51 O.O.2d 277, 259 N.E.2d 501 (zoning referendum
petition summary). As we recently held in Christy v. Summit Cty. Bd. of Elections
(1996), 77 Ohio St.3d 35, 38, 671 N.E.2d 1, 4, such cases are inapposite.
As
in
Christy, 77 Ohio St.3d at 38, 671 N.E.2d at 4, the initiative petition
parts fully complied with R.C. 731.31 because they contained a full and correct
copy of the title and text of the proposed ordinance. Contrary to the board's
argument, the proposed ordinance contains a title, which is designated as "Penal
Facilities Acquisition/Construction/Regulation." See, generally, Black's Law
Dictionary (6 Ed.1990) 1485 ("[I]n legislation, the title of the statute is the
heading or preliminary part * * *.").

In addition, as in Christy, 77 Ohio St.3d at 39, 671 N.E.2d at 4-5, even
assuming that the standards of the zoning referendum petition and ballot language
cases applied, inclusion of the full title and text of the ordinance satisfied
constitutional and statutory requirements. See, e.g., State ex rel. Williams v.
Brown (1977), 52 Ohio St.2d 13, 19-20, 6 O.O.3d 79, 83, 368 N.E.2d 838, 842.

Furthermore, Paragraph D of the proposed ordinance, which repeals and
declares void all municipal legislation that is inconsistent with the ordinance, is
not, as the board contends, ambiguous or misleading because it fails to specify the
inconsistent legislation. Cf. R.C. 1.52(A); State ex rel. Finegold v. Lorain Cty.
Bd. of Commrs. (1928), 29 Ohio App. 364, 371, 163 N.E. 585, 587 ("When the
Legislature declared in plain language that the procedure set forth in the [new act]
should supersede the procedure inconsistent therewith provided by other laws * *
*, it in effect repealed such other laws, not by implication, but by express
enactment * * *.").

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The board thus abused its discretion and acted in clear disregard of
applicable law by refusing to place the proposed ordinance on the November 4
election ballot because of asserted noncompliance with R.C. 731.31.

The board next suggests that other reasons support its decision to refuse to
submit the issue to the electorate. It notes that although it granted the protest
because of the alleged noncompliance with R.C. 731.31, the protestor also
contended that the ordinance was not subject to municipal initiative powers
because it constituted administrative rather than legislative action. Mandamus will
not lie to compel a board of elections to submit an ordinance proposed by
initiative petition to the electorate if the ordinance does not involve a subject
which a municipality is authorized by law to control by legislative action. State ex
rel. Rhodes v. Lake Cty. Bd. of Elections (1967), 12 Ohio St.2d 4, 41 O.O.2d 2,
230 N.E.2d 347.

Section 1f, Article II of the Ohio Constitution provides 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 * * *." Administrative actions are not subject to
municipal powers of initiative and referendum. Donnelly v. Fairview Park (1968),
13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500. "The test for determining whether
the action of a legislative body is legislative or administrative is whether the
action taken is one enacting a law, ordinance or regulation, or executing or
administering a law, ordinance or regulation already in existence." Id. at
paragraph two of the syllabus.

Parma has general authority under R.C. 715.16(A) to enact the proposed
ordinance. In addition, the enactment of the ordinance would constitute a
permissible legislative act because it does not simply administer laws already in

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existence. Id.; cf. State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994),
69 Ohio St.3d 5, 11, 630 N.E.2d 313, 317 ("Generally, the adoption of a zoning
amendment, like the enactment of the original zoning ordinance, is a legislative act
which is subject to referendum."). Therefore, the board could not rely on Section
1f, Article II of the Ohio Constitution to refuse to place the proposed ordinance on
the election ballot. In fact, the board did not base its ultimate decision on this
contention.

A final asserted reason to invalidate the proposed ordinance that the
ordinance violates R.C. 731.19 by containing more than one subject, addresses the
substance or propriety of the ordinance rather than the validity and sufficiency of
the initiative petition under the pertinent constitutional and statutory requirements
for initiative petitions. These contentions are thus premature. Thurn, 72 Ohio
St.3d at 293, 649 N.E.2d at 1208 ("[A]ny claim alleging the unconstitutionality or
illegality of the substance of the proposed ordinances prior to their approval by the
electorate is premature."); Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286,
133 N.E. 556, paragraph two of the syllabus ("[W]here the mandatory provisions
of the constitution or statute prescribing the necessary preliminary steps to
authorize the submission to the electors of an initiative statute or ordinance have
been complied with[,] the submission will not be enjoined.").

Based on the foregoing, relators established that the board abused its
discretion and acted in clear disregard of applicable law by sustaining the protest
and refusing to submit the proposed ordinance to the electorate at the November 4
election. This conclusion is also supported by our duty to liberally construe
municipal initiative provisions to permit the exercise of such power. Christy, 77
Ohio St.3d at 40, 671 N.E.2d at 5. Accordingly, we grant a writ of mandamus to

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compel the board and its members to submit the proposed ordinance to the Parma
electorate at the November 4, 1997 election.2
Writ granted.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
FOOTNOTES:

1.
Respondents concede that relators do not have an adequate remedy in the
ordinary course of the law.
2.
This moots relators' alternative claim for a writ of prohibition.

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