Beiersdorfer v. Larose

• Decision Date: 20 August 2021
• Docket Number: 20-3557
• Parties: SUSAN BEIERSDORFER, et al Plaintiffs - Appellants, v. FRANK LAROSE, et al, Defendants - Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

SUSAN BEIERSDORFER, et al Plaintiffs - Appellants, v. FRANK LAROSE, et al, Defendants - Appellees.

No. 20-3557

United States Court of Appeals, Sixth Circuit

August 20, 2021

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: GIBBONS, WHITE, and READLER, Circuit Judges.

JULIA SMITH GIBBONS, CIRCUIT JUDGE

The plaintiffs are environmental activists, affiliated with various groups, who have sought to use Ohio's citizen initiative process to pass county charters and municipal ordinances touching on environmental issues. The "Initiative Authority Statutes" allow county boards of elections to "prescreen" proposed initiatives to ensure compliance with state law. For proposed county-charter initiatives, the board of elections must ensure that the petition includes all the county positions and powers mandated by state law. For proposed municipal-ordinance initiatives, the board must ensure that the proposal takes legislative rather than administrative action. The plaintiffs complain that the defendants-members of various county boards of elections and the Ohio secretary of state-have unconstitutionally applied the Initiative Authority Statutes to prevent the plaintiffs from placing their proposed initiatives on the ballot. The plaintiffs sought declaratory and injunctive relief, alleging violations of the First Fourteenth, and Ninth Amendments, as well as state law. The district court dismissed the claims against one of the defendant boards of elections because the plaintiffs lacked standing. The district court also concluded that the state law claim was barred by sovereign immunity, and that the complaint failed to allege any constitutional violations. We dismiss an additional county board of elections for lack of standing and affirm the district court in all other respects.

I.

Ohio citizens can pass laws through the state's initiative process, which includes the power to enact a county charter Ohio Const. art. X, § 3, and a municipal ordinance id. art. II, § 1f.^[1] But before a local initiative can reach the ballot, Ohio's "Initiative Authority Statutes" direct the county board of elections to "determine whether" the proposed county-charter or municipal-ordinance initiative "falls within the scope of authority to enact via initiative." Ohio Rev Code Ann. § 3501.11(K)(2); see also id. §§ 3501.38(M), 3501.39(A). In other words, the county board of elections prescreens each proposed initiative to "determine whether the petition and the signatures on the petition meet the requirements of law." Id. § 307.95(A). For a county charter, the board of elections must verify that the proposed initiative "provide[s] the form of government of the county" and details the powers and duties of county officials. Ohio Const. art. X, § 3; see also State ex rel. Walker v. Husted, 43 N.E.3d 419, 425 (Ohio 2015) ("[S]et[ting] forth the form of government . . . is the sine qua non of a valid charter initiative."). For a municipal ordinance-as opposed to a municipal charter^[2]-the board of elections must ensure that the initiative takes legislative, not administrative, action. Ohio Const., art. II, § 1f; State ex rel. Ebersole v. Delaware Cnty. Bd. of Elections, 20 N.E.3d 678, 684 (Ohio 2014) ("The test for determining whether an action is legislative or administrative is 'whether the action taken is one enacting a law, ordinance, or regulation, or executing a law, ordinance, or regulation already in existence.'" (quoting Donnelly v. City of Fairview Park, 233 N.E.2d 500, 500 (Ohio 1968))). "[I]f any portion of the petition is not within the initiative power," then "[t]he petition shall be invalid." Ohio Rev. Code Ann. §§ 3501.11(K)(2), 3501.38(M)(1)(a), 3501.39(A)(3). If the board of elections determines that the petition is invalid, the petition is not submitted to the electorate for consideration.

Proponents of an invalidated initiative are entitled to judicial review of the board's decision. The proponent of a county charter can request that the board bring an action in a common pleas court to establish the validity of the petition. Ohio Rev. Code Ann. § 307.94. Similarly, the proponent of a municipal ordinance can seek an injunction in a common pleas court.^[3] See, e.g., Storegard v. Bd. of Elections of Cuyahoga Cnty., 255 N.E.2d 880, 881 (Ohio Com. Pl. 1969); Ohio Rev. Code Ann. § 2506.01. Alternatively, the proponent of a county-charter initiative can file a written protest to the board's decision, which the board is obligated to deliver to the Ohio secretary of state. Ohio Rev. Code Ann. § 307.95. If the secretary agrees^[4] with the board's decision invalidating the proposed initiative, the proponent can seek a writ of mandamus from the Ohio Supreme Court to compel placement of the charter on the ballot. See, e.g., State ex rel. Coover v. Husted, 70 N.E.3d 587, 588-89 (Ohio 2016) (per curiam). The proponent of a municipalordinance initiative can likewise seek a writ of mandamus from the Ohio Supreme Court instead of proceeding in a common pleas court. See, e.g., State ex rel. Citizens for Responsible Green Gov't v. City of Green, 118 N.E.3d 236, 240-41 (Ohio 2018). The Ohio Supreme Court considers the validity of the proposed initiative "essentially" de novo, Schmitt v. LaRose, 933 F.3d 628, 63940 (6th Cir. 2019), cert. denied, 140 S.Ct. 2803 (2020), and resolves these ballot-access disputes on an expedited timeline, see Ohio S.Ct.Prac.R. 12.08(A).

Plaintiffs Susan Beiersdorfer and Dario Hunter are members of Frackfree Mahoning Valley, which tried to amend the Youngstown Municipal Charter in 2017. The Mahoning County Board of Elections concluded that the proposal-the Youngstown Drinking Water Protection Bill of Rights-exceeded Youngstown's legislative power by creating new causes of action and refused to place it on the ballot. The plaintiffs filed a writ of mandamus with the Ohio Supreme Court protesting that decision. The Ohio Supreme Court denied the writ, finding that the proposed municipal charter amendments exceeded the city's authority to enact by initiative and were therefore properly excluded from the ballot. State ex rel. Flak v. Betras, 95 N.E.3d 329, 333 (Ohio 2017), abrogated by State ex rel. Maxcy v. Saferin, 122 N.E.3d 1165 (Ohio 2018). The board again refused to place the measure on the ballot the following year, and the plaintiffs sought another writ of mandamus. The Ohio Supreme Court granted the writ, and the municipal charter amendment was placed on the ballot, although it did not pass. State ex rel. Khumprakob v. Mahoning Cnty. Bd. of Elections, 109 N.E.3d 1184, 1186 (Ohio 2018). Frackfree tried again later that year and the board certified the measure for the ballot.

Plaintiffs Markie Miller and Bryan Twitchell are members of Toledoans for Safe Water and sought to amend Toledo's municipal charter with the Lake Erie Bill of Rights, which provided a legal basis for citizen intervention to protect the Lake Erie watershed. The Lucas County Board of Elections determined that the initiative was beyond Toledo's authority to enact and refused to place it on the ballot. The plaintiffs sought a writ of mandamus, which the Ohio Supreme Court denied. State ex rel. Twitchell v. Saferin, 119 N.E.3d 365, 367 (Ohio 2018) (citing Flak, 95 N.E.3d at 332), abrogated by Maxcy, 122 N.E.3d at 1165.

Shortly thereafter, the Ohio Supreme Court abrogated Flak, holding that "boards of elections have no authority to review the substance of a proposed municipal-charter amendment." Maxcy, 122 N.E.3d at 1169. Maxcy explained that Flak had "mistakenly conflated" the amendment of municipal charters with the passing of municipal ordinances via initiative. Id. If a petition to amend a municipal charter contains enough signatures, then the municipality's governing body must "provide by ordinance for the submission of the proposed amendment to the electors." Id. at 1171. "And once the legislative body of the municipality passes an ordinance placing the proposed charter amendment on the ballot, the duty of the board [of elections] is to simply add the proposed charter amendment to the ballot." Id. In other words, "in placing a proposed amendment to a municipal charter on the ballot, the 'board of elections has nothing but a ministerial role under the [Ohio] Constitution.'" Id. (quoting State ex rel. Semik v. Cuyahoga Cnty. Bd. of Elections, 617 N.E.2d 1120, 1123 (Ohio 1993) (per curiam)).

After Maxcy, the Lucas County Board of Elections placed the proposed municipal charter amendment on the ballot, and it passed. Drewes Farms P'ship v. City of Toledo, 441 F.Supp.3d 551, 554 (N.D. Ohio 2020), appeal dismissed, No. 20-3368, 2020 WL 3619934 (6th Cir. Apr. 14, 2020), and appeal dismissed, No. 20-3361, 2020 WL 3620205 (6th Cir. May 5, 2020). A federal district court later invalidated the law as "unconstitutionally vague and exceed[ing] the power of municipal government in Ohio." Id. at 558.

Plaintiffs Gregory Pace and William Lyons are members of the Columbus Community Rights Group, which proposed a municipal ordinance titled "Community Bill of Rights for Water, Soil and Air Protection and to Prohibit Gas and Oil Extraction and Related Activities and Projects." The proposed ordinance gave Columbus citizens various environmental rights and regulated oil and gas extraction. The Franklin County Board of Elections determined that the proposed ordinance exceeded Columbus's legislative authority and refused to place the measure on the ballot. The plaintiffs sought a writ of mandamus, which the Ohio Supreme Court denied. State ex rel. Bolzenius v. Preisse, 119 N.E.3d 358, 362 (Ohio 2018).

Plaintiffs Gwen Fischer and Damen Rae are members of the Portage Community Rights Group, which petitioned to...