State ex rel. Bd. of Elections

• Decision Date: 02 October 2008
• Docket Number: No. 2008-1804.,2008-1804.
• Citation: 895 N.E.2d 177,2008 Ohio 5093,119 Ohio St.3d 478
• Parties: The STATE ex rel. CITY OF UPPER ARLINGTON et al. v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

895 N.E.2d 177

119 Ohio St.3d 478

2008-Ohio-5093

The STATE ex rel. CITY OF UPPER ARLINGTON et al. v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.

No. 2008-1804.

Supreme Court of Ohio.

Submitted September 29, 2008.

Decided October 2, 2008.

Jeanine A. Hummer and Thomas A. Lindsey; and The McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, Columbus, for relator city of Upper Arlington.

The McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, Columbus, for relators Margaret Concilla and David A. Varda.

Ron O'Brien, Franklin County Prosecuting Attorney, and Patrick J. Piccininni and Anthony E. Palmer Jr., Assistant Prosecuting Attorneys, for respondent Franklin County Board of Elections.

James C. Becker, Columbus, for intervening respondent Michael A. Schadek.

Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K. Schaltenbrand, Cleveland, and Stephen J. Smith; and John Gotherman, Columbus, urging granting of the writ for amicus curiae Ohio Municipal League.

Harris & Mazza and Robert H. Willard, urging denial of the writ for amici Columbus, curiae Germaine Hirsch, William D. Kloss Sr., Robert H. Maynard, Daniel McCormick, Melanie F. Myers, John E. Ross, and Beverlee A. Tague.

PER CURIAM.

{¶ 1} This is an expedited election action for a writ of prohibition to prevent the board of elections from placing an ordinance proposed by an initiative petition on the November 4, 2008 election ballot. In the alternative, relators initially requested a writ of mandamus to compel the board of elections to decide a protest against the petition filed by two of the three relators, but upon the board's subsequent denial of the protest, they agree that their mandamus claim is now moot. Because the enactment sought to be repealed by the proposed ordinance constituted an administrative action and is thus not the proper subject of initiative or referendum, we grant the writ of prohibition.

Council Ordinances

{¶ 2} On December 10, 2007, the city council of relator city of Upper Arlington adopted Ordinance No. 106-2007, the annual appropriation ordinance, which included an appropriation for solid-waste management. On that same day, the city council adopted Ordinance No. 124-2007, which authorized the city manager to enter into a contract with Inland Service Corporation for solid-waste collection and processing services.

{¶ 3} Four days later, on December 14, the city council adopted Ordinance No. 126-2007, which repealed Ordinance No. 124-2007 and again authorized the city manager to enter into a solid-waste services contract with Inland Service Corporation, but this time declaring an emergency.

{¶ 4} On January 28, 2008, intervening respondent, Michael A. Schadek, a city elector, filed with the city finance director under R.C. 731.32 a precirculation copy of an initiative petition proposing an ordinance to repeal Ordinance No. 126-2007. On that same day, the city council adopted Ordinance No. 7-2008, which, inter alia, provides for an annual service fee to be paid for trash-collection services.

Contract for Solid-Waste Services

{¶ 5} On January 31, Upper Arlington City Manager Virginia L. Barney executed a contract for solid-waste services with Inland Service Corporation to begin on April 7. The agreement provided, "The City Manager is duly authorized to execute this Agreement pursuant to Ordinance No. 126-2007 and the subsequent repeal of said ordinance, by legislative action or by the initiative or referendum process, shall not result in the termination or cancellation of this Agreement."

Initiative Petition

{¶ 6} On July 25, 2008, Schadek filed with the city finance director a signed initiative petition proposing an ordinance to repeal Ordinance No. 126-2007. The text of the proposed ordinance provides:

{¶ 7} "Section I. That the residents of Upper Arlington do not desire the `privatization' of trash services and want to continue Upper Arlington's `pay as you throw approach' requiring solid waster stickers for refuse collection and not for recycling with garage-side pickup at their homes by the City's own employees with no annual fee for trash collection.

{¶ 8} "Section II. That the residents of Upper Arlington don't want the City's Administration to enter into any such contract authorized under Upper Arlington Ordinance No. 126-2007 with Inland Service Corporation for solid waste collection and processing services or any other third party contractor prior to a vote on this initiative at the next general election; but in the event that the City chooses to ignore this initiative process and enter into a contract with Inland Service Corporation such resolution and/or ordinance shall be and hereby is repealed and the City shall pay for and be responsible for contract damages to Inland Service Corporation.

{¶ 9} "Section III. That the ordinance shall take effect and be in force from and after the earliest date allowed by law."

{¶ 10} The petition did not designate any petitioners as a committee to be regarded as filing the petition. The city finance director transmitted the petition to respondent, Franklin County Board of Elections, which determined on August 14 that the petition contained 1,716 valid signatures. On August 21, the finance director certified the petition to the board of elections, expressly reserving the right to challenge the validity of the petition.

Protest and Board of Elections Hearing on Protest

{¶ 11} On August 29, 2008, relators city of Upper Arlington and Margaret Concilla, a resident elector of the city, filed a protest against the initiative petition, specifying 14 different grounds. On September 8, 2008, the board of elections conducted a hearing on the protest, but declined to decide the protest, which had the effect of denying the protest and permitting the proposed ordinance to appear on the November 4 election ballot. At the hearing, the board considered the arguments of both the protesters and Schadek, and the protesters submitted exhibits, including the affidavit of the city manager.

Expedited Election Case

{¶ 12} On September 11, relators, Upper Arlington, Concilla, and David A. Varda, another resident-elector of the city, filed this expedited election action for a writ of prohibition to prevent the board of elections from placing the proposed ordinance on the November 4 general election ballot. In the alternative, relators requested a writ of mandamus ordering the board of elections to decide the protest. We granted Schadek's motion to intervene as an additional respondent. On September 12, the board voted to deny the protest, thereby rendering relators' mandamus claim moot.

{¶ 13} The parties filed evidence and briefs pursuant to the accelerated schedule in S.Ct.Prac.R. X(9). The Ohio Municipal League filed an amicus curiae brief in support of relators, and various Upper Arlington residents filed an amicus curiae brief in support of respondents.

{¶ 14} This cause is now before the court for our consideration of the merits.

Prohibition

{¶ 15} Relators request a writ of prohibition to prevent the board of elections from placing the ordinance proposed by the initiative petition on the November 4 2008 general election ballot. To be entitled to the writ, relators must establish that (1) the board of elections is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no adequate remedy exists in the ordinary course of law. State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 28.

{¶ 16} Relators have established the first requirement for the writ. Notwithstanding the intervening respondent's argument to the contrary, the board of elections exercised quasi-judicial authority by effectively denying the protest after conducting a hearing that included sworn testimony. State ex rel. Reese v. Cuyahoga Cty. Bd. of Elections, 115 Ohio St.3d 126, 2007-Ohio-4588, 873 N.E.2d 1251, ¶ 17. The protesters submitted the sworn testimony of the city manager by affidavit at the protest hearing. In addition, the manager of the board's elections operations testified at the hearing, albeit without being sworn. "Quasi-judicial authority is the power to hear and determine controversies between the public and individuals that require a hearing resembling a judicial trial." (Emphasis added.) State ex rel. Wright v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St.3d 184, 186, 718 N.E.2d 908. Here, R.C. 3501.39(A)(2) required that the board of elections conduct a quasi-judicial hearing on relators' protest. Cf. State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893 (prohibition not available when no statute or other law required that the board of elections conduct a hearing resembling a quasi-judicial hearing on protest).

{¶ 17} Relators also established the third requirement for the writ because they lack an adequate remedy in the ordinary course of law due to the proximity of the election. State ex rel. Columbia Res. Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 28.

{¶ 18} For the remaining requirement, the exercise of unauthorized power, "we must determine whether the board acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law." State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. There is no evidence of fraud or corruption here, so relators must establish that the board of elections abused its discretion or clearly disregarded applicable law by denying their protest and certifying the ordinance proposed by the initiative to the election ballot. "An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude." State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 305, 686...