In re Proposed Charter Petition

• Decision Date: 16 December 2019
• Docket Number: CASE NO. 18CA30
• Citation: 2019 Ohio 5445
• Parties: IN RE: PROPOSED CHARTER PETITION.
• Court: Ohio Court of Appeals

2019 Ohio 5445

IN RE: PROPOSED CHARTER PETITION.

CASE NO. 18CA30

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

December 16, 2019

DECISION & JUDGMENT ENTRY

APPEARANCES:

Terry J. Lodge, Toledo, Ohio, and Patrick C. McGee, Athens, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Zachary L. Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for appellee.

CIVIL CASE FROM COMMON PLEAS COURT

PER CURIAM.

{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that affirmed a decision of the Athens County Board of Elections, appellee herein, that declined to certify a petition to be placed on the November 7, 2017 general election ballot. The Committee of Petitioners, appellant herein,¹ assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY REFUSING TO HOLD THAT OHIO CONST. ART. X, § 3 PROVIDES A SEPARATE AND INDEPENDENT MEANS OF CREATING A COUNTY CHARTER FORM OF COUNTY GOVERNMENT."

SECOND ASSIGNMENT OF ERROR:

"THE BOE AND TRIAL COURT ERRED IN FAILING TO RECOGNIZE THE CONSTITUTIONAL RIGHT OF LOCAL COMMUNITY SELF-GOVERNMENT, WHICH PREVENTS

BOARDS OF ELECTIONS AND THE COURTS FROM DISQUALIFYING A PROPOSED CHARTER UNTIL THE PEOPLE HAVE VOTED UPON THEM."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN UPHOLDING PRE-ELECTION SUBSTANTIVE REVIEW AND VETO POWERS USED BY THE BOE, UNCONSTITUTIONALLY INFRINGE ON THE PEOPLE'S INHERENT RIGHT TO LEGISLATE AND TO HAVE MEANINGFUL REDRESS IN THE COURTS"

FOURTH ASSIGNMENT OF ERROR:

"HB 463 IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE 'ONE-SUBJECT RULE' OF ARTICLE II, § 15(D) OF THE OHIO CONSTITUTION."

{¶ 2} In June 2017, appellant filed a Petition for Submission of Proposed County Charter and requested appellee to place the issue on the November 7, 2017 general election ballot.² Before appellee responded to appellant's request, appellant submitted a written objection "to any outcome from [appellee]'s scrutiny of the proposed County Charter Petition other than to place it on the November ballot for a vote of Athens County electors." Appellant asserted that appellee's "responsibility is ministerial" and includes reviewing whether the petition contains the required signatures, contains a proposed county charter form of government, and otherwise complies with the formal statutory and constitutional requirements. Appellant argued that because recent changes to the statutes that purport to permit a board of elections to review the substance of a petition are unconstitutional, appellee's duty is to merely assess the "technical adequacy of the Petition and its components."

{¶ 3} On July 10, 2017, appellee decided not to certify the petition. In particular, appellee determined that the petition is "not a valid charter" because it did not provide for an "elective county executive or an appointive county executive" as R.C. 302.02 mandates.

{¶ 4} Appellant then invoked R.C. 307.94 and requested appellee "to establish the validity or invalidity of the petition in an action before the Athens County Court of Common Pleas." Appellant reiterated its argument that appellee's duty when reviewing the petition "is essentially ministerial."

{¶ 5} On July 19, 2017, the trial court affirmed appellee's decision. First, the court found that the petition did not contain the required 10% of signatures. The court additionally determined that appellee's decision that the petition is "invalid for failing to provide for the appointment or election of a county executive is reasonable."

{¶ 6} On July 25, 2017, appellant filed a motion for partial relief from judgment and asserted that the trial court mistakenly found that the petition did not contain the required number of signatures. Subsequently, the trial court granted appellant's motion and amended its prior order, "nunc pro tunc, to state that [appellant] fully complied" with the signature requirement.

{¶ 7} Appellant appealed the trial court's decision.

{¶ 8} On August 21, 2017, the individuals that comprised the committee also filed a complaint for a writ of mandamus in the Ohio Supreme Court.³ State ex rel. McGinn v. Walker, 151 Ohio St.3d 199, 2017-Ohio-7714, 87 N.E.3d 204. They requested a writ of mandamus to compel appellee to certify their petition to the November 2017 ballot. The McGinn relatorsasserted that appellee could not determine the substantive merit of the petition, but rather could only review whether the petition complied with the technical requirements. The relators alleged that appellee's review "violated the people's constitutional rights to create a charter form of government as secured by Art. 1, [Section] 2 and Art. X, [Section] 3, and to ballot access in violation of the First Amendment and Art. I, [Section] 11 of the Ohio Constitution." They also asserted that the H.B. 463 amendments are unconstitutional and violate the one-subject rule.

{¶ 9} In particular, the relators argued that the proposed charter fully complies with Article X, Section 3 of the Ohio Constitution and "provides for the form of county government" and "provides for County Commissioners and an Executive Council." The relators contended that "the proposed charter explicitly designates the County Commissioners as the legislature of a chartered county government, answerable to an Executive Council." The relators further asserted that, because the petition is "valid as to form and contain[ed] the required number of signatures," appellee was "required to submit the proposed charter amendments to the electors." The relators also claimed that the amendments enacted under House Bill 463 violate "the people's constitutional rights and the separation of powers doctrine." Additionally, the relators argued that appellee's refusal to certify the petition violated their "First Amendment rights to political speech free from content-based restrictions" and "the people's right under the Ohio Constitution to propose and pass legislation."

{¶ 10} On September 21, 2017, the Ohio Supreme Court denied the writ. Id. at ¶ 25. The court determined that the proposed county charter "fail[ed] to provide for the exercise of all powers and duties of county government." Id. at ¶ 13. The court declined to consider the relator's remaining arguments.

{¶ 11} Subsequently, on August 8, 2018, we dismissed appellant's appeal for lack of a final, appealable order. Following our dismissal of the appeal, appellant filed a motion for reconsideration with the trial court. On October 30, 2018, the trial court again affirmed appellee's decision and determined that appellee's "decision that the petition was invalid for failing to provide for the appointment or election of a county executive is reasonable, in part, based upon the language in the above referenced statute and is in accordance with law." This appeal followed.

I.

{¶ 12} Before we consider the merits of appellant's appeal, we first consider appellee's contention that the Ohio Supreme Court's decision in McGinn renders appellant's appeal moot. Appellee contends that the Ohio Supreme Court determined that appellee justifiably refused to certify the petition and, thus, the issues appellant raises in the case sub judice are moot. Appellee argues that this court is unable to grant appellant the relief requested, when doing so would contradict the Ohio Supreme Court's decision in McGinn.

{¶ 13} Appellant, however, contends that its appeal is not moot. Appellant asserts that McGinn did not address all of the legal issues that appellant raises in the present appeal, but instead addressed only one issue: that the proposed Athens County Charter did not meet the requirements of Ohio Const. Article X, Section 3, and thus would not be certified to the November 7, 2017 ballot. Appellant posits that the Ohio Supreme Court confined its decision "solely to assessing the conformity of the Athens County Charter proposal to the requirements of Ohio Const., Article X, Section 3." Appellant thus argues that the Ohio Supreme Court did not address the other issues that it raises in the present appeal.

{¶ 14} "[T]he duty of every judicial tribunal [is] to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect." Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970); e.g., Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9. Courts should "not * * * give opinions upon moot questions or abstract propositions, or * ** declare principles or rules of law which cannot affect the matter in issue in the case before it." Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21 (1910); accord Fortner, 22 Ohio St.2d at 14. Consequently, when a "case in controversy" is lacking, the case is moot and "'there will be no appellate review.'" State ex rel. Evans v. Mohr, 155 Ohio St.3d 579, 2018-Ohio-5089, 122 N.E.3d 1240, ¶ 5, quoting Adkins v. McFaul, 76 Ohio St.3d 350, 350, 667 N.E.2d 1171 (1996); accord United States v. Sanchez-Gomez, — U.S. —, 138 S.Ct. 1532, 1537, 200 L.Ed.2d 792 (2018) (stating that federal courts do not have jurisdiction over moot cases). Appellate courts will dismiss an appeal as moot when granting "'effectual relief'" is "'impossible.'" Miner, 82 Ohio St. at 238-239, quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895); accord Drydock Coal Co. v. Ohio Div. of Reclamation, 115 Ohio App.3d 563, 565, 685 N.E.2d 863 (4th Dist.1996).

{¶ 15} "In general, 'election cases are moot where the relief sought is to have a name or an issue placed on the ballot and the election was held before the case could be decided.'" State ex rel. Todd v. Felger, 116 Ohio St.3d 207, 2007-Ohio-6053, 877 N.E.2d 673, ¶ 9, quoting In re Protest Filed by Citizens for the Merit Selection of Judges, Inc., 49 Ohio St.3d 102, 103, 551 N.E.2d 150 (1990), and citing State ex rel. Bona v. Orange, 85 Ohio St.3d 18, 21, 706 N.E.2d 771 (1999). Furthermore, the Ohio...