Morris v. Macedonia City Council, 94-1996

• Decision Date: 13 October 1994
• Docket Number: No. 94-1996,94-1996
• Citation: 641 N.E.2d 1075,71 Ohio St.3d 52
• Parties: MORRIS v. CITY COUNCIL OF the CITY OF MACEDONIA et al.
• Court: Ohio Supreme Court

Page 52

71 Ohio St.3d 52

641 N.E.2d 1075

MORRIS v. CITY COUNCIL OF the CITY OF MACEDONIA et al.

No. 94-1996.

Supreme Court of Ohio.

Decided Oct. 13, 1994.

Relator, Thomas E. Morris, and other individuals who are members of Residents for Good Government, circulated part-petitions to place a proposed charter amendment on the November 8, 1994 ballot for the city of Macedonia. The proposed charter amendment would provide: an additional Macedonia City Council member; passage of legislation exclusively by council; and allow the council president to preside at council meetings, beginning January 1, 1996. On August 8, 1994, Barbara Kornuc, a member of both Residents for Good Government and the city council, filed nine part-petitions containing 338 signatures with Josephine Arceci, the Clerk of the Macedonia City Council. Immediately upon receipt and examination of the petition, Arceci made copies of it for the city's records.

On August 11, 1994, a regular meeting of the Macedonia City Council was held at which council failed to consider the charter amendment initiative. On August 12, 1994, Arceci delivered the petition to the Summit County Board of Elections to have the board verify the signatures. On August 15, 1994, the board of elections returned the petition to Arceci and advised her that because of its heavy work load, it had verified only 234 signatures on some of the part-petitions. On the same date, Arceci forwarded all the part-petitions to Joseph W. Diemert, Jr., Macedonia Law Director, to examine them for proper form and to draft an ordinance for council to certify the charter amendment for placement on the ballot.

In place of council's regular meeting scheduled for August 25, 1994, which was cancelled due to vacations of certain of its members, council held a special meeting on August 22, 1994, at which the charter amendment initiative was again not addressed. At the meeting, council member Kornuc questioned when council would rule on the proposed initiative. Immediately after the meeting, she was advised that Diemert was reviewing the petitions and that council would consider the issue at its next regular meeting on September 8, 1994.

On August 23, 1994, Arceci, as a result of alleged improprieties with the petition identified by Diemert's office, delivered the petition to the board a second time for verification of all 338 signatures. On August 31, 1994, the board certified that 321 of the 338 signatures in the petition were those of Macedonia voters. The total vote cast at the last general municipal election in Macedonia was 2,171.

By letter dated September 1, 1994 to Council President Rosalie Koren, Diemert advised council that it possessed authority to review the petition to determine if the requirements of R.C. 3501.38 were satisfied. As a result of Diemert's review, he determined that there were defects in the part-petitions circulated by relator, June Fitzgerald, Gail Wharton, and Michael Herchick. Diemert recommended that all the signatures on the part-petitions circulated by relator and Fitzgerald not be counted as valid signatures and stated that the part-petition circulated by Wharton "raise[d] the possibility" of a defect. Diemert also noted that the part-petition circulated by Herchick might not have been witnessed as declared in Herchick's circulator's affidavit, since Diemert's office had been advised "by one of the signators that her signature was not witnessed * * *." Diemert concluded that "depending on the number of petitions Council excludes, [it] must then determine through the Board of Elections, the number of remaining valid signatures," and "[i]f it is 217 or more," council was constitutionally required to submit the matter to the board for placement on the next municipal election ballot, to be held on November 8, 1994.

The constitutional deadline for placing the charter amendment initiative on the November 8, 1994 ballot was September 9, 1994, i.e., sixty days prior to the scheduled election. In response to Diemert's letter, Kornuc prepared a letter with several affidavits for presentation at the regular council meeting scheduled for September 8, 1994 in order to rebut the suggested petition defects.

On September 8, 1994, the council meeting was cancelled due to the lack of a quorum because of the purported illnesses of two of the six council members and the unexplained inability of a third member to attend. On September 9, 1994, Kornuc distributed the letter and affidavits to all the council members. Diemert subsequently refused relator's demand to commence a mandamus action against council, based in part on the reasoning that if council ultimately determined that the initiative should be submitted, a special election following the November 8, 1994 election could then be conducted.

On September 19, 1994, relator, individually and as chairman of Residents for Good Government, initiated this action seeking a writ of mandamus to compel respondents, Macedonia City Council, its members, Macedonia Mayor Joseph Migliorini, Macedonia Law Director Diemert, and the Summit County Board of Elections, to place the charter amendment initiative on the November 8, 1994 ballot.

Although relator contends otherwise, respondents city council et al. claim that after determining that the petitions contained sufficient valid signatures, council passed an ordinance certifying the charter amendment initiative for placement on the ballot at a January 10, 1995 special election. The cost of the special election would be at least $4,000. Respondents then filed answers to relator's mandamus action and a motion to dismiss the cause. This court issued an alternative writ, 70 Ohio St.3d 1456, 639 N.E.2d 794, and the parties submitted evidence and briefs in this expedited election matter.

Gallup, Burns & Mills, and David B. Gallup, Cleveland, for relator.

Joseph W. Diemert, Jr., Director of Law, pro se, and for respondents Macedonia City Council, council members, and Macedonia Mayor Joseph Migliorini.

Lynn C. Slaby, Summit County Pros. Atty., and William E. Schultz, Asst. Pros. Atty., for respondent Summit County Bd. of Elections.

PER CURIAM.

In order to be entitled to a writ of mandamus, relator must establish that (1) he has a clear legal right to have the charter amendment initiative placed on the November 8, 1994 ballot, (2) respondents have a corresponding legal duty to submit the charter amendment initiative to the electors of Macedonia on the November 8, 1994 ballot, and (3) relator possesses no adequate remedy in the ordinary course of the law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129.

Relator asserts in his sole proposition of law that respondents Macedonia City Council and its members had a mandatory duty to enact the enabling ordinance by September 9, 1994 in order to place the charter amendment initiative on the November 8, 1994 ballot.

Section 7, Article XVIII of the Ohio Constitution authorizes municipal corporations to adopt and amend a home rule charter, and Sections 8 and 9 of Article XVIII prescribe the procedures for adopting and amending a charter. State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 336, 617 N.E.2d 1120, 1122. Section 9 of Article XVIII, which incorporates the requirements of Section 8, allows, and on petition by ten percent of the electors, requires, the legislative authority of any city, e.g., city council, to "forthwith" authorize by ordinance an election on the charter amendment issue. Section 14, Article XVIII of the Ohio Constitution provides that "[t]he percentage of electors required to sign any petition provided for herein shall be based upon the total vote cast at the last preceding general municipal election."

Relator complied with the foregoing constitutional provisions by submitting a petition containing 338 signatures on August 8, 1994. Arceci sent the petition to the board, which twice certified that it contained more than the required number of signatures. On the second occasion, the board verified 321 proper signatures, substantially exceeding the 217 signatures needed to have the issue placed on the November 8 ballot.

Respondents city council et al. contend that based upon council's legitimate concerns about defects in the petitions, time constraints, and the inability of three council members to attend the scheduled September 8, 1994 meeting, council had no mandatory duty to certify the charter amendment initiative for placement on the November 8 ballot.

Since the Constitution requires that the admission of the charter amendment initiative be made by the legislature, it follows that the legislature need not make the submission unless satisfied of the sufficiency of the petitions and that all statutory requirements are fairly met. Semik, supra, 67 Ohio St.3d at 335-336, 617 N.E.2d at 1122; State ex rel. Hinchliffe v. Gibbons (1927), 116 Ohio St. 390, 395, 156 N.E. 455, 456-457. Procedures may be added to the constitutional amendment process if the additions do not conflict with the Ohio Constitution. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 22, 577 N.E.2d 645, 648-649. Section 18.01, Article XVIII of the Macedonia Charter provides that the charter "may be amended as provided by the Ohio Constitution or the Statutes of the State of Ohio." Thus, non-conflicting portions of R.C. 731.31, which provides that "[p]etitions shall be governed * * * by the rules set forth in [R.C.] 3501.38," apply. The law director's objections to the petitions were premised in part on the petition requirements of R.C. 3501.38.

The city council's constitutional authority to review the sufficiency of petitions is limited to matters of form, not substance. State ex rel. Polcyn v. Burkhart (1973), 33 Ohio St.2d 7, 10-11, 62 O.O.2d 202, 203-204, 292 N.E.2d 883, 885. A city council's authority to determine if all applicable statutory...