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THE STATE EX REL. FITE ET AL. V. AEH, CLERK.
[Cite as State ex rel. Fite v. Aeh (1997), ___ Ohio St.3d ___.]
Elections -- Recall of city council members -- Signatures on recall petition
removed as result of signature withdrawal petitions -- Applicability of
R.C. 3501.38(H) and (I) -- Clerk not entitled to remove signatures from
recall petitions after filing -- Writ and attorney fees granted.

(No. 96-2498 -- Submitted August 26, 1997 -- Decided September 11,
1997.)

IN MANDAMUS.

Relators, Ethel Wood, William Carson, Damon L. Fite, and Richard Noel,
are residents and electors of Wards 1, 2, 4, and 6, respectively, of the city of
Portsmouth. In September 1996, relators and other Portsmouth electors filed
petitions with respondent, Portsmouth City Clerk Jo Ann Aeh, demanding recall
elections for First Ward Council Member Ann Sydnor, Second Ward Council
Member Greg Bauer, Fourth Ward Council Member Jim Kalb, and Sixth Ward
Council Member Orin Campbell. At the time that the recall petitions were filed,
each petition contained on its face signatures of more than twenty-five percent of
the electors who voted at the last preceding regular municipal election in the
respective wards.

After the recall petitions were filed, the affected council members drafted
petitions for signatories of the recall petitions to withdraw their signatures. Aeh
typed the signature withdrawal petitions and notarized some of them. When these
petitions were subsequently filed, Aeh considered them amendments to the recall
petitions. The signature withdrawal petitions were filed prior to Aeh's
determination of the sufficiency of the recall petitions.


By letters dated October 1, 1996, Aeh notified the persons responsible for
the recall petitions that the petitions contained an insufficient number of
signatures. Aeh disqualified certain signatures and removed other signatures. Aeh
removed signatures based on the signature withdrawal petitions rather than on the
basis that individuals had not been told the truth when they had signed the recall
petitions. The recall petitions for the city council members representing the First,
Fourth, and Sixth Wards would have had sufficient valid signatures for recall
elections if Aeh had not removed signatures at the request of the signatories.

Relators then requested the city solicitor to institute a mandamus action to
compel Aeh to reinstate the names she had removed from the recall petitions after
they had been filed with her. In late October, the city solicitor refused. Shortly
thereafter, relators filed this action for a writ of mandamus to compel Aeh to
certify the recall petitions as sufficient and to notify the affected council members
as required by the Portsmouth Charter. We granted an alternative writ and issued
a schedule for the presentation of evidence and briefs. 77 Ohio St.3d 1545, 674
N.E.2d 1184. Aeh subsequently filed motions to dismiss the claims relating to
Second Ward Council Member Greg Bauer and Sixth Ward Council Member Orin
Campbell.

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

McTigue & Brooks and Donald J. McTigue, for relators.

David W. Kuhn, Portsmouth City Solicitor, for respondent.
__________________
Per
Curiam.
Motions to Dismiss

2


Aeh moves to dismiss the mandamus claims relating to Second Ward
Council Member Greg Bauer and Sixth Ward Council Member Orin Campbell.
Bauer and Campbell have resigned their council positions. These resignations
moot relators' claims concerning their petitions requesting Bauer's and
Campbell's removal from city council. The issues raised by these claims are not
capable of repetition, yet evading review. State ex rel. Fenley v. Kyger (1995), 72
Ohio St.3d 164, 165, 648 N.E.2d 493, 494. Relators also do not oppose Aeh's
dismissal motions.

Therefore, we grant Aeh's motions and dismiss the claims concerning the
petitions requesting removal of Bauer and Campbell.
Merits: First and Fourth Ward Council Members

Relators assert in their sole proposition of law that Aeh has a clear legal
duty to comply with R.C. 3501.38. Aeh counters that the provisions set forth in
the Portsmouth Charter governing recall petitions are exclusive and controlling.

Sections 150, 151, and 152 of the Portsmouth Charter provide:

"SECTION 150. RECALL PETITION PAPERS.

"Any elective officer provided for by this Charter may be removed from
office by recall. The procedure to effect such a removal shall be as follows:

"Any elector of the City may make and file with the City Clerk an affidavit
stating the name of the officer whose removal is sought and the grounds alleged
for such removal. * * *"

"SECTION 151. FILING RECALL PETITION.

"A petition demanding the removal of an elective officer shall be known as
a recall petition. A recall petition to be effective must be returned and filed with
the City Clerk within thirty (30) days after the filing of the affidavit as provided in
the next preceding section, and to be sufficient must bear * * * if for the removal

3

of an officer elected from a ward, * * * the signatures of qualified electors of the
particular ward equal in number to at least twenty-five per centum (25%) of the
electors who voted at the last preceding regular municipal election in said ward. A
recall petition, if insufficient as originally filed, may be amended as provided in
this Charter."
"SECTION
152. RECALL ELECTION ORDERED.

"If a recall petition, or amended petition, shall be certified by the City Clerk
to be sufficient, he shall at once submit it to the Council with his certificate to that
effect and shall notify the officer whose removal is sought of such action. If the
officer whose removal is sought does not resign within five (5) days after such
notice the Council shall thereupon order and fix a day for holding a recall election.
Any such election shall be held not less than forty (40) nor more than ninety (90)
days after the expiration of the period of five (5) days last mentioned, and at the
same time as any general, primary, or special election shall be held within such
period; but, if no general, primary, or special election shall be held within such
period, the Council shall order a special recall election to be held within the time
aforesaid."

R.C. 3501.38 provides that "[a]ll * * * petitions presented to or filed with
the secretary of state or a board of elections or with any other public office * * *
for the holding of an election on any issue shall * * * be governed by the
following rules:

"* * *

"(H) Any signer of a petition may remove his signature therefrom at any
time before the petition is filed in a public office by striking his name therefrom;
no signature may be removed after the petition is filed in any public office.

4


"(I) No alterations, corrections, or additions may be made to a petition after
it is filed in a public office."

R.C. 3501.38(H) and (I) prohibit the removal of signatures from petitions
after they are filed in any public office. See, e.g., State ex rel. Citizens for
Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167,
174-175, 602 N.E.2d 615, 621; State ex rel. Green v. Casey (1990), 51 Ohio St.3d
83, 85, 554 N.E.2d 1288, 1291; State ex rel. Jeffries v. Ryan (1969), 21 Ohio
App.2d 241, 253, 50 O.O.2d 403, 410, 256 N.E.2d 716, 724.

Contrary to Aeh's contentions, R.C. 3501.38(H) and (I) are applicable to the
recall petitions filed with her. First, R.C. 3501.38 is incorporated by reference in
Sections 143 and 165 of the Portsmouth Charter. See Christy v. Summit Cty. Bd.
of Elections (1996), 77 Ohio St.3d 35, 37-38, 671 N.E.2d 1, 3-4, citing State ex
rel. Bogart v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 554, 555, 621
N.E.2d 389, 390; Section 143, Portsmouth Charter ("All elections provided for by
this Charter * * * shall be conducted by the election authorities prescribed by
general law; and the provisions of the general election laws of the State shall apply
to all such elections except as otherwise provided by this Charter."); Section 165,
Portsmouth Charter ("All general laws of the State applicable to municipal
corporations * * * and which are not in conflict with the provisions of this Charter
* * * shall be applicable to this City * * *."). Second, the charter provisions
relating to recall petitions are silent on the issue of withdrawal of signatures after
filing. Therefore, there is no conflict with R.C. 3501.38(H) and (I), and the
statutory provisions control. See, e.g., State ex rel. Citizens for a Better
Beachwood v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 167, 169-
170, 580 N.E.2d 1063, 1065 (R.C. 731.32 controls if charter is silent on statutory
requirement that copies of ordinances must be filed with city auditor.). Third,

5

application of R.C. 3501.38(H) and (I) to recall petitions in Portsmouth gives
effect to Sections 143 and 165 of the charter and harmonizes the charter with the
pertinent statutory provisions. State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d
138, 142, 630 N.E.2d 708, 711, quoting 1 Gotherman & Babbit, Ohio Municipal
Law (2 Ed.1992) 55, Section T 4.39 ("`Municipal charters are to be so construed
as to give effect to all separate provisions and to harmonize them with the
statutory provisions whenever possible.'"); State ex rel. Youngstown v. Mahoning
Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 73, 647 N.E.2d 769, 773.

Aeh nevertheless contends that she was entitled to remove signatures from
the recall petitions for various reasons. Aeh initially asserts she was entitled to
remove the signatures based on the petition amendment procedure set forth in
Section 29 of the Portsmouth Charter. Aeh claimed that she treated the signature
withdrawal petitions as "amendments" to the original recall petitions. But the
amendment procedure was inapplicable to Aeh's determination, since she made no
finding of insufficiency of the original petitions prior to considering the
"amendments." Section 29, Portsmouth Charter ("A[ ] * * * recall petition may be
amended at any time within ten days after the making of a certificate of
insufficiency by the City Clerk * * *."); Section 151, Portsmouth Charter ("A
recall petition, if insufficient as originally filed, may be amended as provided in
this Charter."). As noted by relators, the charter petition amendment procedure
provides an opportunity for the petitioners to file additional signatures if the
original petition does not contain a sufficient number of signatures of qualified
electors. Section 29 does not expand the city clerk's authority to determine the
sufficiency of recall petitions by authorizing the removal of signatures from the
original petitions in derogation of R.C. 3501.38(H) and (I).

6


Aeh next asserts that she was entitled to remove signatures following the
filing of the recall petitions because of fraud, misrepresentation, and mistake in
securing the original signatures. Aeh's assertion is meritless for the following
reasons.

First, R.C. 3501.38(H) and (I), as incorporated by the Portsmouth Charter,
do not permit post-filing removal of signatures. Second, evidence of fraud,
misrepresentation, or mistake would not have invalidated the recall petitions.
There is no such exception to the requirements of R.C. 3501.38(H) and (I). See,
also, Gem Dev. Co. v. Clymer (1963), 120 Ohio App. 189, 191, 28 O.O.2d 463,
464, 201 N.E.2d 721, 722 (Violation of R.C. 731.36 did not invalidate petitions
because General Assembly imposes a fine as the penalty for violating that
provision.). Second, Aeh's deposition testimony indicated that she did not base
her removal of signatures on fraud, misrepresentation, or mistake. Third, the
deposition testimony of Aeh and council members related to fraud,
misrepresentation, or mistake was hearsay, which was specifically objected to by
relators. See, e.g., Evid.R. 802; In re Coy (1993), 67 Ohio St.3d 215, 219, 616
N.E.2d 1105, 1108. Aeh did not present competent evidence supporting her
assertions of fraud, misrepresentation, or mistake.

Aeh finally claims that she was entitled to remove signatures following the
filing of recall petitions based on past practice. There is, however, no past practice
exception to the requirements of R.C. 3501.38(H) and (I).

Therefore, Aeh had a clear legal duty under Sections 151 and 152 of the
Portsmouth Charter to certify as sufficient the recall petitions relating to the First
and Fourth Ward council members. The petitions had the requisite number of
signatures to be sufficient. Aeh was not entitled to remove signatures from the

7

petitions after filing. In addition, relators have established a clear legal right to
this certification, and they have no adequate remedy in the ordinary course of law.

Based on the foregoing, we grant a writ of mandamus compelling Aeh to
certify the recall petitions seeking the removal of First and Fourth Ward Council
Members Sydnor and Kalb as sufficient and to notify these council members
pursuant to Section 152 of the Portsmouth Charter. In addition, we grant relators'
request for attorney fees and order relators' counsel to submit a bill and
documentation in support of the request for attorney fees, in accordance with the
guidelines set forth in DR 2-106.
Writ granted in part and
cause dismissed in part.

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


8

 

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