State ex rel. Huebner v. W. Jefferson Village Council

• Decision Date: 06 March 1996
• Docket Number: No. 95-58,95-58
• Parties: The STATE EX REL. HUEBNER, Appellant, v. WEST JEFFERSON VILLAGE COUNCIL et al., Appellees.
• Court: Ohio Supreme Court

Page 381

75 Ohio St.3d 381

662 N.E.2d 339

The STATE EX REL. HUEBNER, Appellant, v. WEST JEFFERSON VILLAGE COUNCIL et al., Appellees.

No. 95-58.

Supreme Court of Ohio.

Submitted April 4, 1995.

Decided July 26, 1995.

Reconsideration Granted,

Judgment Reversed, and Writ Allowed

March 6, 1996.

Appellant, David A. Huebner, and other individuals circulated part-petitions to place a proposed charter amendment on the November 8, 1994 ballot for the village of West Jefferson. The amendment would restrict the village in taxing wages originating within its boundaries to a rate of one percent. On July 18, 1994, the petition, which contained 208 valid signatures, was filed with the Clerk of the West Jefferson Village Council. As of that date, there were 2,272 registered voters in the village. The number of registered voters who had voted at the last preceding general municipal election on November 2, 1993 was 482.

On August 15, 1994, appellees, West Jefferson Village Council members, voted not to certify the part-petitions to the board of elections "for the reason that they are not sufficient in form and in substance." Appellees determined that the petition did not contain sufficient valid signatures because it lacked signatures of at least ten percent of all the electors in the village on the date the petition was filed, i.e., ten percent of the total number of West Jefferson registered voters (2,272), or 228 valid signatures.

On August 19, 1994, Huebner filed a complaint in the Court of Appeals for Madison County for a writ of mandamus compelling appellees to certify the proposed charter amendment to the board of elections for placement of the issue on the ballot for the next regular municipal election. The court of appeals granted appellees' motion for summary judgment and denied the writ, thereby rejecting appellant's contention that the requisite number of signatures was ten percent of the number of registered voters who had voted at the last preceding municipal election, i.e., 49 signatures.

On Huebner's pro se appeal as of right from the denial of the writ, a four to three majority of this court affirmed the court of appeals. State ex rel. Huebner v. W. Jefferson Village Council (1995), 72 Ohio St.3d 589, 651 N.E.2d 1001.

The cause is now before the court upon appellant's motion for reconsideration, and motions for leave to intervene in support of appellant's motion filed by the city of Cincinnati and the Secretary of State.

S. David Worhatch, Stow, for appellant.

Betty D. Montgomery, Attorney General, Susan E. Ashbrook and Andrew S. Bergman, Assistant Attorneys General, for intervenor Secretary of State.

Fay D. Dupuis, City Solicitor, Robert H. Johnstone, Deputy City Solicitor, and Richard Ganulin, Assistant City Solicitor, for intervenor city of Cincinnati.

MOYER, Chief Justice.

Following our July 26, 1995 decision in this cause, appellant retained counsel, who filed the motion for reconsideration here and the complaint for a writ of mandamus in a separate expedited election case, State ex rel. Ricchiuto v. Reagan, case No. 95-1679. Both Ricchiuto and another expedited election case, State ex rel. Taxpayers for Accountable Govt. v. Cincinnati City Council, case No. 95-1714, challenged the validity of Huebner. A third expedited election case, State ex rel. Lewis v. Hamilton Cty. Bd. of Elections, case No. 95-1689, sought to apply Huebner to prevent a previously certified charter amendment proposal from being submitted to the electorate for vote. Ricchiuto was resolved when this court denied the writ requested by the relators. State ex rel. Ricchiuto v. Reagan (1995), 74 Ohio St.3d 11, 655 N.E.2d 1298. Taxpayers and Lewis were also subsequently dismissed. State ex rel. Lewis v. Hamilton Cty. Bd. of Elections (1995), 74 Ohio St.3d 1201, 655 N.E.2d 177 (entry dismissing cause), 74 Ohio St.3d at 1202-1203, 655 N.E.2d at 177-178 (Moyer, C.J., concurring), and 74 Ohio St.3d at 1203-1205, 655 N.E.2d at 178-179 (Douglas, J., concurring).

Appellant and the city of Cincinnati ¹ now contend on reconsideration that we should vacate our decision in Huebner and adopt the position of the dissenting opinion therein or, alternatively, should modify Huebner so as to restrict its effect to prospective cases.

We have invoked the reconsideration procedures set forth in S.Ct.Prac.R. XI to correct decisions which, upon reflection, are deemed to have been made in error. See State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections (1993), 67 Ohio St.3d 597, 622 N.E.2d 329 (reasoning contained in a previous dissenting opinion adopted by a majority of this court pursuant to a motion for reconsideration); State ex rel. Eaton Corp. v. Lancaster (1989), 44 Ohio St.3d 106, 541 N.E.2d 64 (views contained in a previous concurring opinion adopted by a majority of this court pursuant to a motion for "rehearing").

The majority Huebner opinion reasoned that denial of the requested writ was justified, in part, by the Home Rule Amendment to the Ohio Constitution, which authorizes municipalities "to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." Section 3, Article XVIII, Ohio Constitution. This justification for denial of the writ was not raised by appellees or discussed by the court of appeals, nor was it fully briefed in this court prior to issuance of our first opinion. We note, additionally, that the discussion of the Home Rule Amendment in our original opinion appears to be contrary to established precedent, and the sole case cited therein appears to be inapposite. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 577 N.E.2d 645. See, also, State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 335-336, 617 N.E.2d 1120, 1122, citing State ex rel. Hinchliffe v. Gibbons (1927), 116 Ohio St. 390, 395, 156 N.E. 455, 457; Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus. Appellant now urges us to recognize and reaffirm the principle that subordinate authority must always yield to contrary paramount authority, and hold that municipal charters may not be construed so as to overrule rights guaranteed to the citizens of Ohio by the Ohio Constitution. Upon further reflection, and on this record, we conclude that the Home Rule Amendment cannot support denial of the writ requested in this case.

The second rationale of our Huebner decision, and the basis of the court of appeals' decision, is the premise that Section 9, Article XVIII of the Ohio Constitution constitutes a special provision (concerning charter amendments) which is in irreconcilable conflict with the general provision of Section 14, Article XVIII, Ohio Constitution. However, appellant and the Huebner dissent argue for a different interpretation of Sections 9 and 14. While Sections 5, 8, and 9 of Article XVIII refer to petitions of "ten per centum of the electors," they do not specify the basis or date upon which the "ten per centum of electors" is to be calculated.

The court of appeals additionally determined that Section 9 should be deemed to prevail over Section 14 because Section 9 was last amended in 1971. On reconsideration, appellant argues against this view, in that the 1971 amendment to Section 9 did not affect the number of signatures required for submission of a proposed charter amendment to the electorate, but rather authorized notice of proposed charter amendments to be given by newspaper publication and not by mailing. Am.Sub.S.J.R. No. 31, 133 Ohio Senate Journal (1969-1970), at 1508. We agree.

A majority of this court now concludes that Section 14 is reconcilable with Sections 5, 8, and 9 of Article XVIII for the reasons set forth in the dissent to our first Huebner opinion as summarized herein. We hold that, in determining the number of valid part-petition signatures necessary to establish a right to the placement of a proposed amendment of a municipal charter before the voters, Sections 5, 8, 9, and 14, Article XVIII of the Ohio Constitution must be construed in pari materia. Accordingly, the percentage of electors required to sign such part-petitions is ten percent of the electors of the municipality based upon the total number of votes cast at the last preceding general municipal election. In the case at bar the relator was therefore required to present 49 valid signatures to create a legal duty on the part of the appellees to certify the proposed amendment for presentation on the ballot. Appellant met and exceeded that requirement by presenting part-petitions that contained 208 valid signatures.

Our decision is based upon a clear reading and consistent application of the Ohio Constitution. It is also the correct result for reasons of public policy. As appellant contends in his motion for reconsideration, our original opinion precludes electors from knowing the exact number of valid signatures required when circulating part-petitions. Under our earlier opinion, the percentage is not determined until the date the petition is filed, and the number of actual electors of a municipality may vary over time based on voter registration drives, annexations, or other events. Conversely, this uncertainty does not exist if Section 14 is applied, since petitioners know the precise number of valid signatures required for submission of the issue to the electorate. Furthermore, this interpretation fosters the goal of providing citizens with access to the ballot, a foundation of our democracy. Moreover, Section 14 was adopted contemporaneously with the pertinent provisions of Sections 5, 8, and 9 of Article XVIII, all of which became effective in 1912, and have been construed in pari materia since that time. We note as well that the Secretary of State, the state's chief election officer, has urged this...