Ohio Manufacturers' Ass'n v. Ohioans for Drug Price Relief Act, 2016–0313.

• Citation: 2016 Ohio 5377,149 Ohio St.3d 250,74 N.E.3d 399
• Decision Date: 15 August 2016
• Docket Number: No. 2016–0313.,2016–0313.
• Parties: OHIO MANUFACTURERS' ASSOCIATION et al. v. OHIOANS FOR DRUG PRICE RELIEF ACT et al.
• Court: United States State Supreme Court of Ohio

149 Ohio St.3d 250

74 N.E.3d 399

2016 Ohio 5377

OHIO MANUFACTURERS' ASSOCIATION et al.

v.OHIOANS FOR DRUG PRICE RELIEF ACT et al.

No. 2016–0313.

Supreme Court of Ohio.

Submitted Aug. 8, 2016.

Decided Aug. 15, 2016.

Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, Nelson M. Reid, and James P. Schuck, Columbus, for challengers.

McTigue & Colombo, L.L.C., Donald J. McTigue, Columbus, J. Corey Colombo, and Derek S. Clinger, for respondents William S. Booth, Daniel L. Darland, Tracy L. Jones, and Latonya D. Thurman.

Michael DeWine, Attorney General, Steven T. Voigt, Senior Assistant Attorney General, and Brodi J. Conover, Assistant Attorney General, for respondent Ohio Secretary of State Jon Husted.

PER CURIAM.

{¶ 1} This is an original action pursuant to Article II, Section 1g of the Ohio Constitution, challenging the petition signatures submitted in support of the "Ohio Drug Price Relief Act" by respondents members of the committee of Ohioans for Drug Price Relief Act, William S. Booth, Daniel L. Darland, Tracy L. Jones, and Latonya D. Thurman (collectively, "the committee"). The challengers are the Ohio Manufacturers' Association, Ohio Chamber of Commerce, Pharmaceutical Research and Manufacturers of America, Keith A. Lake, and Ryan R. Augsburger (collectively, "OMA").

{¶ 2} For the reasons set forth below, we sustain the challenge in part. We hold that 10,303 signatures, including the signatures on all part-petitions circulated by Roy Jackson and Kacey Veliquette, were erroneously validated.

Background

{¶ 3} On December 22, 2015, the committee submitted approximately 10,029 part-petitions, purportedly containing 171,205 signatures, to the office of Ohio Secretary of State Jon Husted in support of an initiative to enact the "Ohio Drug Price Relief Act" as Section 194.01 of the Ohio Revised Code. Husted transmitted the part-petitions to the county boards of elections for verification of the signatures pursuant to R.C. 3501.11(K). He also sent Directive 2015–40, dated December 23, 2015, which instructed the county boards how to review, examine, and verify the petition signatures. In the directive, Husted ordered the county boards to return their certification forms to his office no later than 12:00 p.m. on December 30, 2015.

{¶ 4} To qualify an initiative for the ballot, supporters must submit petitions that satisfy two criteria. First, the petitions must contain a number of valid signatures that is equal to at least 3 percent of the total number of electors. Ohio Constitution, Article II, Section 1b. Evidence in the record establishes that at present, the minimum number of valid signatures is 91,677. Second, the petition must contain valid signatures equal to at least one-half of the 3 percent threshold number (that is, 1.5 percent of the total number of electors) from at least 44 of Ohio's 88 counties. Ohio Constitution, Article II, Section 1g. As of the December 30, 2015 deadline, the county boards had reported a sufficient total number of valid signatures and a sufficient number of valid signatures in enough counties to meet both constitutional requirements.

{¶ 5} Upon verifying a sufficient number of signatures, the secretary of state is required to transmit the proposed statute and initiative petitions to the General Assembly, as soon as it convenes, for consideration. Ohio Constitution, Article II, Section 1b. The first day of the General Assembly's 2016 session occurred on Monday, January 5. But despite having received sufficient verifications, Husted did not transmit the petitions to the legislature at the start of the session.

{¶ 6} Instead, on January 4, 2016, he issued Directive 2016–01, returning the part-petitions to the county boards with instructions to re-review two aspects of them. First, the directive ordered the boards to determine whether petition signatures were improperly removed (i.e., crossed out) by unauthorized persons. And second, the directive ordered the boards to investigate whether circulator statements were invalid due to systematic signature overreporting (i.e., preaffixing the number of signatures purportedly witnessed by the petition circulators to part-petitions containing fewer actual signatures). Husted ordered the boards to complete this review and recertify their results by January 29, 2016.

{¶ 7} On February 4, 2016, Husted advised the committee that the petition contained 96,936 valid signatures, more than the 91,677 required. He also advised the committee that signatures from 47 counties met the constitutional threshold (more than the required 44) and that the constitutional requirements were "fully satisfied." He transmitted the initiative and petition to the General Assembly.

Procedural History

{¶ 8} On February 29, 2016, OMA commenced this original protest action. The protest complaint identified three defects¹ in the part-petitions which, OMA alleged, should cause them to be discounted in their entirety:

1. Contractors crossed out signatures on part-petitions, in violation of R.C. 3519.06(C).

2. Some petition circulators listed nonresidential addresses as their permanent addresses, in violation of R.C. 3501.38(E)(1).

3. More than 1,400 part-petitions contain false circulator statements because they contain fewer signatures than the circulator attested to witnessing, in violation of R.C. 3501.38(E) and 3519.06(D).

OMA requested an "order and/or judgment declaring" the part-petitions and signatures thereon invalid, and an "order and/or judgment" that the petition failed to meet the requirements of Article II, Section 1b.

{¶ 9} We issued an opinion denying the committee's motion for judgment on the pleadings, 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, and on June 1, 2016, OMA made an equivocal request for an evidentiary hearing, stating that the challengers "will not know for certain whether they need an evidentiary hearing until outstanding discovery is completed." OMA never renewed this request and on August 15, 2016, withdrew the request.

{¶ 10} On May 13, 2016, OMA filed a motion for partial summary judgment. We deny that motion as moot. The parties have submitted merit briefs and evidence, and the case is ripe for adjudication on the merits.

Analysis of the Alleged Petition Defects

First Allegation: Signature Deletions

{¶ 11} Ashland County part-petition No. 000007 is a typical example of a signature deletion. The statement of circulator Larry Boyce indicates that he witnessed 28 signatures. And indeed, Ashland County part-petition No. 000007 has a signature on each of its 28 lines. However, one signature, on line 2, has been blacked out with a marker. In its review, the board of elections determined that two signatures—those on lines 4 and 21—were invalid. The board therefore certified 25 valid signatures. The principal claim in this protest is that Ashland County part-petition No. 00007, and thousands of similar part-petitions, should be invalidated in their entirety, based on the theory that someone other than the circulator or signer blacked out at least one signature.

{¶ 12} We reject this aspect of the challenge.

{¶ 13} The Revised Code affirmatively permits three persons to delete a signature from a petition, so long as the deletion occurs before the petition is filed: (1) the circulator, (2) the signer, or (3) the "attorney in fact" for any signer. R.C. 3501.38(G) and (H). OMA contends that the blacking out of signatures on Ashland County part-petition No. 00007 and other part-petitions was done by unauthorized persons and that this defect renders all of those part-petitions invalid.

{¶ 14} OMA's merit brief relies primarily on the testimony of Pamela Lauter, who coordinated some of the petition circulators. Lauter described a process that she called "purging the deck," which involved persons other than the circulators reviewing the part-petitions after the circulators had turned them in and removing invalid signatures by highlighting them with a black, washable magic marker, not crossing them out. But she insisted that the signatures remained visible after the highlighting and denied ever using a black "Sharpie" marker that would have made the signatures unreadable. Unfortunately, the specific "highlighted" part-petitions she discussed were not identified for the record.

{¶ 15} Other evidence confirms that the circulators were not responsible for the deletions of this type. Four petition circulators, Vikki Moore, Marquita Barnhouse, Gloria Torrence, and Rebecca Douglas, denied crossing names off the part-petitions they circulated. And Angelo Paparella, president and owner of PCI Consultants, Inc., the head contractor for the petition drive, testified that PCI operates an out-of-state processing center at which validators review the part-petitions and strike out invalid signatures before returning the part-petitions to the client.

{¶ 16} The evidence therefore shows that signature deletions occurred that were not authorized by R.C. 3501.38(G)and (H). But OMA is mistaken in its belief that the remedy for such a violation is to invalidate the entire part-petition.

{¶ 17} The limited grant of authority to remove a signature serves two purposes: it protects the ability of petition signers to change their minds and remove their signatures, so long as they do so in a timely manner. And it protects circulators from the potential Hobson's choice that would arise if they discover that a petition signature is invalid: either (1) submit a false R.C. 3501.38(E)(1) circulator statement attesting that all the petition signatures are, to the best of the circulator's knowledge and belief, valid or (2) forego the entire part-petition with all its valid signatures. R.C. 3501.38(G) permits the circulator to avoid this dilemma by striking the invalid signature and adjusting the signature count accordingly. See Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 14.

{¶ 18} By implication, R.C. 3501.38(G) and (H) give notice that only...