State ex rel. Bartlett v. Collier, 16–CA–0049.

• Decision Date: 16 September 2016
• Docket Number: No. 16–CA–0049.,16–CA–0049.
• Citation: 72 N.E.3d 1,2016 Ohio 7102
• Parties: The STATE of Ohio ex rel. Kelli A. BARTLETT, Relator v. Gene COLLIER, Clerk of Council for City of New Carlisle, Respondent.
• Court: Ohio Court of Appeals

72 N.E.3d 1

2016 Ohio 7102

The STATE of Ohio ex rel. Kelli A. BARTLETT, Relator

v.Gene COLLIER, Clerk of Council for City of New Carlisle, Respondent.

No. 16–CA–0049.

Court of Appeals of Ohio, Second District, Clark County.

Sept. 16, 2016.

PER CURIAM.

{¶ 1} Kelli A. Bartlett filed a Verified Complaint for a Peremptory Writ of Mandamus or Alternative Writ of Mandamus on August 23, 2016. She asks this court to compel Gene Collier, Clerk of Council for City of New Carlisle (the "Clerk"), to certify the sufficiency and validity of her initiative petition to the Clark County Board of Elections.

{¶ 2} The Clerk filed an answer to the complaint on September 12, 2016, as well as a motion for judgment on the pleadings. On September 13, 2016, Bartlett filed a combined response to the Clerk's motion, as well as her own motion for summary judgment. Collier filed a response to the motion for summary judgment on September 16, 2016. For the following reasons, we grant a writ of mandamus.

Facts and Procedural History

{¶ 3} The facts underlying the complaint are largely undisputed. Bartlett submitted a document entitled "CITY OF NEW CARLISLE, OHIO INITIATIVE PETITION" to the Clerk on July 26, 2016 (the "Petition"). The Petition asked "that the ordinance proposed herein be adopted by the Council or submitted to a vote of the electors of this city for their approval or rejection at the next general election in accordance with Section 10.01 of the municipal code." The proposed ordinance was entitled:

AN INCOME TAX CREDIT IN AN AMOUNT EQUAL TO INCOME TAXES PAID BY A RESIDENT TAXPAYER TO ANOTHER MUNICIPAL CORPORATION WHICH INCLUDES AMENDING MUNICIPAL TAX CODE SECTION 880.04 REGARDING THE IMPOSITION AND RATE OF INCOME TAX.

The Petition contained a notice, in large font, on the top of each page, that read: "Whoever knowingly signs this petition more than once, signs a name other than his own, or signs when not a legal voter is liable to prosecution." It also contained a "Circulator Statement" on the last page, signed by Bartlett.

{¶ 4} The Clerk transmitted the Petition to the Clark County Board of Elections, which found 157 valid signatures thereon. The parties agree that the Petition contained a sufficient number of valid signatures. However, the Clerk, relying on the opinion of the City of New Carlisle's law director, refused to certify validity and sufficiency of the Petition to the Clark County Board of Elections for inclusion on the November 8, 2016 ballot. The parties exchanged correspondence through August 19, 2016 concerning alleged defects in the Petition, which include the timeliness of the petition, the "legality" of a portion of the petition, and the omission of certain statements required by statute. On August 23, 2016, Bartlett filed the instant complaint in mandamus.

Mandamus

{¶ 5} To be entitled to a writ of mandamus, Bartlett must show that the she has a clear legal right to certification of the petition, that the Clerk has a corresponding clear legal duty to certify the petition, and that she lacks an adequate remedy at law. State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 23. The parties' dispute centers on the first two elements, as the upcoming November 8, 2016 election precludes an adequate remedy in the ordinary course of the law. Id. at ¶ 42–43 ("Given the proximity of the November 8 election, any appellate process would last well past the election").

Motions

{¶ 6} The Clerk has moved for judgment on the pleadings. Dismissal under Civ.R. 12(C)"is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8th Dist.1992).

{¶ 7} Bartlett has moved for summary judgment. To be entitled to summary judgment, "it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).

Statutes

{¶ 8} The rules governing initiative petitions in municipal corporations are found in Chapter 731 of the Revised Code, specifically, Section 731.28 through Section 731.42. The presentation of such a petition is governed by R.C. 731.31, which sets forth certain rules and states that "[p]etitions shall be governed in all other respects by the rules set forth in section 3501.38 of the Revised Code."

{¶ 9} R.C. 3501.38 is part of Chapter 3501 governing election procedure and officials, and part of the subchapter on candidacy. It contains two provisions that the Clerk alleges, and Bartlett concedes, are not satisfied here:

(E)(1) On each petition paper, the circulator shall indicate the number of signatures contained on it, and shall sign a statement made under penalty of election falsification that the circulator witnessed the affixing of every signature, that all signers were to the best of the circulator's knowledge and belief qualified to sign, and that every signature is to the best of the circulator's knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code. On the circulator's statement for a declaration of candidacy or nominating petition for a person seeking to become a statewide candidate or for a statewide initiative or a statewide referendum petition, the circulator shall identify the circulator's name, the address of the circulator's permanent residence, and the name and address of the person employing the circulator to circulate the petition, if any.

* * *

(J) All declarations of candidacy, nominating petitions, or other petitions under this section shall be accompanied by the following statement in boldface capital letters: WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.

R.C. 3501.38.

{¶ 10} However, R.C. 731.31, which incorporates R.C. 3501.38 into the requirements for municipal initiative petitions, does "not apply to any municipal corporation which adopts its own charter containing an initiative and referendum provision for its own ordinances and other legislative measures." R.C. 731.41. Instead, the charter provisions apply. State ex rel. Ohio Nat. Bank. v. Lancione, 54 Ohio St.2d 416, 418, 377 N.E.2d 507 (1978) (finding it "apparent" that the charter provisions apply, not the statutes). Whether a board of elections appropriately applies the requirements of R.C. 3501.38 in addition to charter provisions has not been consistently resolved, and is not before the court at this time. Compare State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 32 (holding that R.C. 3501.38(J) applies to a mayoral recall petition where the charter incorporated Ohio's general election law) with State ex rel. Blackman v. Hitte, 5 Ohio St.3d 156, 158, 449 N.E.2d 1279 (1983) (holding that R.C. 3501.38(J) did not apply where the charter language was limited), Lancione at 417–418, 377 N.E.2d 507 (circulators under a charter need not comply with R.C. 3501.38(E) and (J) ), and State ex rel. Madison v. Cotner, 66 Ohio St.2d 448, 450, 423 N.E.2d 72 (1981) (R.C. 3501.38(E)"has no applicability to relators' petition").

City Charter

{¶ 11} The City of New Carlisle has adopted and is governed by a Charter. Article X, Section 10.01 of the Charter concerns initiative and referendum petitions, and provides in its entirety:

(a) Ordinances and resolutions may be proposed by initiative petition and adopted by election. Ordinances and resolutions adopted by Council shall be subject to referendum as provided by the Constitution and laws of Ohio, except as deviated from by this Charter as follows:

(1) Initiative and referendum petitions must be signed by not less than ten percent (10%) of the number of persons voting in the City in the preceding gubernatorial election;

(2) Initiative and referendum petitions shall be filed with the Office of the Clerk of Council for review of sufficiency including the number, but not the validity, of signatures as indicated in (a)(1) above.

(b) When an initiative petition which meets the requirements of this Charter is properly filed with the Office of the Clerk of Council, the Clerk shall, within ten (10) days, transmit a certified copy of the text of the proposed ordinance or other measure, together with the petition, to the Board of Elections.

(c) When a referendum petition which meets the requirements of this Charter, signed as in (a)(1) above, is properly filed with the Office of the Clerk within fifteen (15) days after any ordinance or other measure is passed by the legislative authority, ordering such ordinance or measure to be submitted to the electors of the City for their approval or rejection, the Clerk, within ten (10) days, shall transmit the petition and a certified copy of the text of the proposed ordinance or other measure to the Board of Elections.

(d) The Board shall examine all signatures on initiative and referendum petitions to determine the number of qualified electors of the City who signed the petition. The Board shall return the petition to the Clerk within ten (10) days after receiving it, together with a statement attesting to the number of such electors who signed the petition. If the petition contains the required number of valid

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