State ex rel. Arnett v. Winemiller, 97-1359

• Decision Date: 01 October 1997
• Docket Number: No. 97-1359,97-1359
• Citation: 685 N.E.2d 1219,80 Ohio St.3d 255
• Parties: ARNETT et al., Appellees, v. WINEMILLER, Clerk of Council, Appellant.
• Court: Ohio Supreme Court

Page 255

80 Ohio St.3d 255

685 N.E.2d 1219

[The STATE ex rel.] ARNETT et al., Appellees, v. WINEMILLER, Clerk of Council, Appellant.

No. 97-1359.

Supreme Court of Ohio.

Submitted Sept. 26, 1997.

Decided Oct. 1, 1997.

Charles J. Arnett, pro se.

Gottschlich & Portune, L.L.P., and Robert E. Portune, Dayton, for appellees Randolph Township and Randolph Township Board of Trustees.

Coolidge, Wall, Womsley & Lombard Co., L.P.A., and Janice M. Paulus, Dayton, for appellees Julie A. Johnson, Jerry Vaughn, Carmen Y. Lash, Randolph Township, and Randolph Township Board of Trustees.

Joseph Moore & Associates, Joseph P. Moore, Dayton, and Paul M. Courtney, Kettering, for appellant.

PER CURIAM.

Winemiller asserts in her propositions of law that the court of appeals erred in granting the writ of mandamus. In order to be entitled to the writ, appellees had to establish that (1) they have a clear legal right to have Winemiller transmit the initiative petition and a certified copy of the text of the proposed ordinance and certify the sufficiency and validity of the petition to the boards of elections, (2) Winemiller, as Union Clerk of Council and Director of Finance, has a clear legal duty to perform these acts, and (3) appellees have no adequate remedy in the ordinary course of the law. Morris v. Macedonia City Council (1994), 71 Ohio St.3d 52, 54, 641 N.E.2d 1075, 1077.

Post-Filing Signature Removal

In her first proposition of law, Winemiller contends that appellees did not have a clear legal right to have the petition certified to the boards of elections and she did not have a corresponding duty to certify and transmit the petition because she properly subtracted the withdrawn signatures from the petition.

Winemiller relies on the common-law rule, which provides that "[w]here there is no statutory provision to the contrary, an elector has a right to withdraw his or her name from a referendum petition ' * * * at any time before official action has been taken thereon and before an action in mandamus has been properly commenced * * *, although after the time within which such petition is required by law to be filed and after it actually has been filed.' " (Emphasis added.) State ex rel. Bd. of Edn. for Fairview Park School Dist. v. Bd. of Edn. for Rocky River School Dist. (1988), 40 Ohio St.3d 136, 139, 532 N.E.2d 715, 717-718, quoting Lynn v. Supple (1957), 166 Ohio St. 154, 1 O.O.2d 405, 140 N.E.2d 555, paragraph two of the syllabus.

The court of appeals held that Winemiller erred in relying on the common-law right of withdrawal because R.C. 3501.38(H) and (I) abrogated the common-law rule. " 'Statutes * * * will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it [sic] clearly expresses or imports such intention.' " (Emphasis sic.) Bresnik v. Beulah Park Ltd. Partnership, Inc. (1993), 67 Ohio St.3d 302, 304, 617 N.E.2d 1096, 1098, quoting State v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus.

Municipal initiative and referendum petitions are governed by R.C. 731.28 et seq. and in all other respects by the rules set forth in R.C. 3501.38. R.C. 731.31. R.C. 3501.38 provides that "[a]ll * * * petitions presented to or filed with the secretary of state or a board of elections or with any other public office * * * for the holding of an election on any issue shall * * * be governed by the following rules:

" * * * "(H) Any signer of a petition may remove his signature therefrom at any time before the petition is filed in a public office by striking his name therefrom; no signature may be removed after the petition is filed in any public office.

"(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office." (Emphasis added.)

The plain language of R.C. 3501.38(H) and (I) expressly precludes the removal of signatures after the petition is filed with the applicable public office. ² The statutory preclusion encompasses the attempted post-filing "withdrawal" of signatures. See State ex rel. Bowman v. Columbiana Cty. Bd. of Commrs. (1997), 77 Ohio St.3d 398, 400, 674 N.E.2d 694, 695 ("Undefined words used in a statute must be accorded their usual, normal, or customary meaning."); R.C. 1.42. "Withdraw" means "to remove or draw out from a place or position." Webster's Third New International Dictionary (1986) 2626; see, also, Black's Law Dictionary (6 Ed.1990) 1602. In fact, the signature "withdrawal" forms here specifically request Winemiller to "remove" the specified names.

Winemiller also relies on certain language from State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 294, 649 N.E.2d 1205, 1209, stating that one of the purposes of the ten-day inspection period in R.C. 731.28 and 731.34 is to permit electors who have signed a petition the opportunity to withdraw their names. But the foregoing language is dictum, and Thurn did not involve or analyze R.C. 3501.38(H) and (I) and their effect on the common-law right to withdraw. Thurn is thus inapposite.

More recently, in State ex rel. Fite v. Aeh (1997), 80 Ohio St.3d 1, 684 N.E.2d 285, we expressly held that R.C. 3501.38(H) and (I) prohibit a city clerk from removing signatures based on signature withdrawal petitions received after recall petitions had been filed with the clerk. Similarly, Winemiller was prohibited from refusing to count initiative petition signatures based on the signature removal forms filed with her after the filing of the petition. Winemiller's first proposition of law is consequently meritless.

Abuse of Discretion

In her second proposition of law, Winemiller contends that she did not abuse her discretion in refusing to certify the petition to the boards of elections based on her belief that there were insufficient signatures due to the signature removal forms. Winemiller's contention lacks merit. Granted that she possesses discretion in her duties under R.C. 731.28, see State ex rel. Watkins v. Quirk (1978), 59 Ohio App.2d 175, 180, 13 O.O.3d 202, 205, 392 N.E.2d 1302, 1306, and State ex rel. Kahle v. Rupert (1918), 99 Ohio St. 17, 19, 122 N.E. 39, 40, she abused that discretion by improperly removing signatures from the petition, in violation of R.C. 3501.38(H) and (I). Cf. State ex rel. Williams v. Iannucci (1988), 39 Ohio St.3d 292, 294, 530 N.E.2d 869, 870 ("We construe R.C. 731.28 to confer on the auditor only the ministerial duty to certify to the board of elections the text of a proposal for which sufficient signatures have been obtained.").

Adequate Remedy; Declaratory Judgment

In her third proposition of law, Winemiller asserts that the court of appeals erred in granting a writ of mandamus because declaratory judgment constituted an adequate remedy in the ordinary course of the law. A writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of the law. R.C. 2731.05. In order for an alternative remedy to constitute an adequate remedy at law, it must be complete, beneficial, and speedy. State ex rel. Crabtree v. Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 249-250, 673 N.E.2d 1281, 1284.

Declaratory judgment is not an adequate remedy here because it is not sufficiently complete. In general, where declaratory judgment would not be a complete remedy unless coupled with ancillary extraordinary relief in the nature of a mandatory injunction, the availability of declaratory judgment does not preclude a writ of mandamus. State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 537, 653 N.E.2d 349, 355. Absent a mandatory injunction compelling Winemiller to perform the requested acts, a declaratory judgment would not be a complete remedy.

In addition, a declaratory judgment action would not have been sufficiently speedy. See, e.g., State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 341, 673 N.E.2d 1351, 1354 (In election cases, "declaratory judgment might not provide an adequate remedy in the ordinary course of law."); cf. Thurn, 72 Ohio St.3d at 291-292, 649 N.E.2d at 1207-1208, citing State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 129, 412 N.E.2d 393, 394. As the court of appeals noted, Winemiller had to transmit the initiative petition and a certified copy of the text of the proposed ordinance to the Montgomery and Miami County Boards of...