Beiersdorfer v. LaRose
| Decision Date | 30 August 2019 |
| Docket Number | CASE NO. 4:19CV260 |
| Citation | 397 F.Supp.3d 1037 |
| Parties | Susan BEIERSDORFER, et al., Plaintiffs, v. Frank LAROSE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Lindsey Schromen-Wawrin, Shearwater Law, Port Angeles, WA, Terry J. Lodge, Toledo, OH, for Plaintiffs.
Renata Y. Staff, Julie M. Pfeiffer, Sarah E. Pierce, Office of the Attorney General - Constitutional Offices State of Ohio, Nick A. Soulas, Jr., Timothy A. Lecklider, Office of the Prosecuting Attorney - Franklin County, Columbus, OH, Michael K. Lyons, Office of the Prosecuting Attorney - Medina County, Medina, OH, Zachary L. Saunders, Office of the Prosecuting Attorney - Athens, Athens, OH, Mark P. D'Apolito, Sharon K. Hackett, Office of the Prosecuting Attorney - Mahoning County, Youngstown, OH, Christopher J. Meduri, Office of the Prosecuting Attorney - Portage County, Ravenna, OH, Evy M. Jarrett, John A. Borell, Sr., Kevin A. Pituch, Office of the Prosecuting Attorney - Lucas County - Adams, Toledo, OH, for Defendants.
MEMORANDUM OF OPINION AND ORDER [Resolving ECF Nos. 5, 22, 38 ]
Defendants Richard F. Schoen, Brenda Hill, Joshua Hughes, and David Karmol, in their official capacities as members of the Lucas County Board of Elections, filed a Motion for Judgment on the Pleadings. ECF No. 5. Defendants David Betras, Mark Munroe, Robert Wasko, and Tracey Winbush, in their official capacities as members of the Mahoning County Board of Elections, filed a Motion to Dismiss. ECF No. 22. Defendant Frank LaRose, in his official capacity as the Ohio Secretary of State, also filed a Motion to Dismiss. ECF No. 38. Plaintiffs opposed each motion, ECF Nos. 40, 45, 48, and all defendants replied, ECF Nos. 44, 51, 52. Additionally, the Lucas County Board of Elections Defendants and Defendant LaRose filed supplemental briefing in support of their motions. ECF Nos. 65, 66. Plaintiffs filed a responsive brief. ECF No. 67. The Court heard oral argument as to the pending motions on August 26, 2019.
For the following reasons, the Court grants the Mahoning County Board of Elections Defendants' motion to dismiss for lack of standing. ECF No. 22. The Court also grants the motion for judgment on the pleadings filed by the Lucas County Board of Elections Defendants and the motion to dismiss filed by Defendant Frank LaRose. ECF Nos. 5, 38.
Ohio permits its citizens to pass laws through an initiative process. This includes the power to enact a county charter, Ohio Const. art. X, § 3, amend a municipal charter, id. art. XVIII, § 7, and enact a municipal ordinance, id. art. II, § 1.
Electors of a county may commence the initiative process by filing a county charter petition with the board of elections or the board of county commissioners.1 O.R.C. § 307.94. Either way, the board of elections is responsible for reviewing the petition to "determine whether the petition and the signatures on the petition meet the requirements of law[.]" Id. ; O.R.C. § 307.95(A). "The petition shall be invalid if any portion of the petition is not within the initiative power." O.R.C. §§ 3501.11(K)(2), 3501.38(M)(1)(a), 3501.39(A)(3). Upon making its determination, the board of elections is required to submit a report to the board of county commissioners. O.R.C. §§ 307.94, 307.95(A). If the petition does not meet the requirements of law, the board of elections' report must provide "the reasons for invalidity." O.R.C. §§ 307.94, 307.95(A).
The board of elections' findings of the validity or invalidity of a county charter petition may be challenged through a written protest, filed with the board of elections.2 O.R.C. § 307.95(B). The board of elections must deliver or mail to the secretary of state each protest received. Id. at § 307.95(B) - (C). The secretary of state must "determine ... the validity or invalidity of the petition," including whether the petition is within the initiative power. Id. at § 307.95(C). "The determination by the secretary of state is final." Id.
A proposed municipal charter amendment may be submitted to the electorate through the initiative process. The amendment of a municipal charter is "a matter concerning the structure of a municipal government." State ex rel. Maxcy v. Saferin , 155 Ohio St.3d 496, 122 N.E.3d 1165, 1168 (Ohio 2018). If the proposed amendment has the requisite number of signatures, the legislative authority must pass an ordinance providing for the submission of the amendment to the electorate. Ohio Const., art. XVIII, § 8. Once the ordinance is passed, the board of elections is required to add the proposed charter amendment to the ballot. Maxcy , 122 N.E.3d at 1171.
Electors may enact municipal ordinances through the initiative process. This power is limited to "all questions which such municipalities may now or hereafter be authorized by law to control by legislative action[.]" Ohio Const., art. II, § 1f.
Like with county charter petitions, a board of elections must determine whether a proposed initiative "falls within the scope of a municipal political subdivision's authority to act via initiative" and whether "the petition satisfies the statutory prerequisites to place the issue on the ballot. O.R.C. § 3501.38(M)(1)(a). "The petition shall be invalid if any portion of the petition is not within the initiative power." Id. at §§ 3501.11(K)(2), 3501.38(M)(1)(a), 3501.39(A)(3).
Plaintiffs Susan Beiersdorfer and Dario Hunter are Mahoning County residents and members of the organization Frackfree Mahoning Valley ("Frackfree"). ECF No. 1 at PageID #: 27-28. In 2017, Frackfree submitted a petition to amend the Youngstown Municipal Charter to the Mahoning County Board of Elections. Id. at PageID #: 28. The Board refused to place the proposed amendments on the election ballot, concluding that they exceeded Youngstown's legislative power by creating new causes of action. Id. at PageID #: 29. In response, members of Frackfree, including Beiersdorfer and Hunter, filed a writ of mandamus with the Ohio Supreme Court. Id. at PageID #: 28-29.
The Ohio Supreme Court denied the writ, finding that the proposed municipal charter amendments were beyond the scope of the city's authority to enact by initiative and therefore properly excluded from the ballot. State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 95 N.E.3d 329, 333 (2017).3
On April 24, 2018, Frackfree again attempted to place the Youngstown Drinking Water Protection Bill of Rights on the ballot. ECF No. 1 at PageID #: 30. After the Board refused, the petitioners again sought a writ of mandamus from the Ohio Supreme Court. Id. The Ohio Supreme Court granted the writ, and the charter amendment was placed on the ballot two weeks before the May 2018 election. Id. ; see State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections , 153 Ohio St.3d 581, 109 N.E.3d 1184, 1186 (2018). The measure, however, did not receive the requisite number of votes to pass. ECF No. 1 at PageID #: 31.
Frackfree once more submitted the Youngstown Drinking Water Protection Bill of Right to the Board, this time for placement on the November 2018 ballot. Id. The Board certified the measure for placement on the ballot. Id.
Plaintiffs Markie Miller and Bryan Twitchell are Toledo residents and members of the organization Toledoans for Safe Water ("TSW"). ECF No. 1 at PageID #: 34-35. On August 6, 2018, TSW submitted part-petitions with approximately 10,500 signatures in support of placement of the Lake Erie Bill of Rights ("Bill"). Id. at PageID #: 35. The Bill is a municipal charter amendment with a "rights of nature" component providing a legal basis, including standing, for citizen intervention for the purpose of protecting the Lake Erie watershed. Id.
The Lucas County Board of Elections notified the Clerk of Toledo City Council that the minimum number of votes necessary to qualify the Bill for the ballot had been surpassed. Id. The Clerk of Toledo City Council accordingly instructed the Board to put the Bill on the November 6, 2018 ballot for a public vote. Id.
On August 28, 2018, the Board unanimously voted to reject the Bill from the ballot. Id. The Board determined that the Bill contained provisions beyond the scope of the City of Toledo's power to enact. Id.
Plaintiffs sought a writ of mandamus to compel the Board to place the Bill on the ballot, claiming that the Board was prohibited from invalidating municipal initiatives from the ballot based on substantive evaluations of legality. Id. at PageID #: 36. The Ohio Supreme Court denied the writ, relying on its decision in Flak , 152 Ohio St.3d 244, 95 N.E.3d 329, in holding that elections boards are authorized to "determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative." ECF No. 1 at PageID #: 36; State ex rel. Twitchell v. Saferin , 155 Ohio St.3d 52, 119 N.E.3d 365 (Ohio 2018).
Two weeks later, 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.
Under O.R.C. §§ 307.94 and 307.95(B), the secretary of state is responsible for resolving protests challenging the validity or invalidity of county charter petitions. Plaintiffs allege a number of instances in which the acting secretary of state exercised this power. First, the secretary of state sustained a protest against a county charter petition submitted by the Meigs County Home Rule Committee. ECF No. 1 at PageID #: 39-40. On two occasions, the secretary of state also rejected protests of the Athens County Board of Elections' refusals to place a county charter initiative on the ballot. I...
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