State ex rel. Barton v. Butler County Bd. of Elections

• Decision Date: 20 October 1988
• Docket Number: No. 88-1730,88-1730
• Citation: 530 N.E.2d 871,39 Ohio St.3d 291
• Parties: BARTON et al. v. BUTLER COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

Page 291

39 Ohio St.3d 291

530 N.E.2d 871

[The STATE, ex rel.] BARTON et al. v. BUTLER COUNTY BOARD OF ELECTIONS.

No. 88-1730.

Supreme Court of Ohio.

Submitted Oct. 19, 1988.

Decided Oct. 20, 1988.

Relators, Norma and John Barton, seek a writ of prohibition "directing and restraining" the respondent, Butler County Board of Elections, from placing on the November 8, 1988 ballot a referendum on an ordinance enacted by the Middletown City Commission. The ordinance appropriates $37,102 for contractual services, allegedly to pay fees connected with an investigation of Russell Dwyer and the Middletown Police Department, and attorney fees incurred in connection with a road-widening project. Respondent denies that this is the purpose of the appropriation.

Relators contend that the proposed referendum is invalid because the city finance director did not maintain the referendum petitions for public inspection for ten days, as required by R.C. 731.29 and 731.34, and because R.C. 731.30 exempts appropriations for current expenses from referendum. Respondent denies these allegations and raises the additional defenses that (1) relators have an adequate remedy at law via an injunction, (2) the action is moot, and (3) relators have been dilatory (laches).

Norma Barton and John Barton, pro se.

John F. Holcomb, Pros. Atty., and Victoria Daiker, Hamilton, for respondent.

PER CURIAM.

Respondent argues that relators have an adequate remedy at law via an injunction. We agree and find an additional reason why prohibition is inappropriate.

For a writ of prohibition to issue, a court must find that the respondent is about to exercise judicial or quasi-judicial power, that the exercise of such power is unauthorized by law, and that relator has no other adequate remedy at law. State, ex rel. Judson, v. Spahr (1987), 33 Ohio St.3d 111, 515 N.E.2d 911. This court has held that the Secretary of State exercises quasi-judicial power when determining the sufficiency of referendum petitions. State, ex rel. Patton, v. Myers (1933), 127 Ohio St. 95, 186 N.E. 872. This characterization applies equally to boards of elections in their review of such petitions. Thus, the first prerequisite for the issuance of a writ of prohibition is satisfied.

The second prerequisite for the issuance of a writ is that the quasi-judicial power is unauthorized by law. Here, the essence of relators' complaint is not that respondent is unauthorized to determine the sufficiency of referendum petitions. Such a contention is refuted by R.C. 3501.11(K), ¹ which expressly provides such authority. Rather, relators contend that respondent has not applied or has misapplied the law, i.e., it has judged badly or abused its discretion. In Kelley v. State, ex rel. Gellner (1916), 94 Ohio St. 331, 114 N.E. 255, we held in paragraph three of the syllabus:

"The proper function of the writ of prohibition is to restrain inferior courts and tribunals from exceeding their jurisdiction and to confine them to the exercise of those powers legally conferred. It is not an appropriate remedy for the correction of errors, and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate."

R.C. 3501.11(K) confers legal authority...