State ex rel. Beard v. Hardin

• Decision Date: 04 April 2018
• Docket Number: No. 2018–0335,2018–0335
• Parties: The STATE EX REL. BEARD et al. v. HARDIN et al.
• Court: Ohio Supreme Court

153 Ohio St.3d 571

109 N.E.3d 1174

2018 Ohio 1286

The STATE EX REL. BEARD et al.

v.HARDIN et al.

No. 2018–0335

Supreme Court of Ohio.

Submitted March 26, 2018

Decided April 4, 2018

Fitrakis & Gadell–Newton, L.L.C., and Robert J. Fitrakis, Columbus, for relators.

Zach Klein, Columbus City Attorney, and Richard N. Coglianese, Joshua T. Cox, and Charles P. Campisano, Assistant City Attorneys, for respondents Shannon G. Hardin, Michael Stinziano, Elizabeth Brown, Mitchell J. Brown, Jaiza Page, Emmanuel V. Remy, and Priscilla R. Tyson.

Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Harold J. Anderson III, Assistant Prosecuting Attorney, for respondent Franklin County Board of Elections.

Kennedy, J.{¶ 1} In this expedited election case, relators, Jonathan C. Beard and a committee in support of an initiative petition, Everyday People for Positive Change, seek a writ of mandamus to compel respondent members of the Columbus City Council to approve an ordinance placing a proposed city-charter amendment on the May 8, 2018 ballot. Relators also seek to compel respondent Franklin County Board of Elections to place the proposed amendment on the ballot. We deny the writs as to all respondents.

I. Case Background

{¶ 2} In May 2017, Beard submitted to the Columbus city clerk a certified copy of a petition for an initiative that would amend 11 sections of the Columbus City Charter. He was acting on behalf of Everyday People for Positive Change, the petition committee organized to support the proposed ballot measure.

{¶ 3} The petition's title states its objectives, in general terms:

To enact electoral system and related administrative changes to Columbus City Council by amending Sections 3, 4, 5, 6, 14, 17, 18, 20, 22, 41, and 46 of the Charter to create ten city council districts, establish nomination requirements for candidates from districts, provide for election of council members from districts, reduce the number of council members elected at-large to three, regulate growth in council staffing, change the process for mid-term appointments to vacant council seats, create term limits, establish contribution limits for council elections, and provide public access television for council elections.

The proposed changes would increase the size of city council (from 7 to 13 members); introduce district representation for 10 of the seats; impose term limits; establish new rules for filling vacancies on council; establish new eligibility requirements for members; limit the number of staff employed by council; and introduce rules for city-council campaigns, including contribution limits and guaranteed time on public-access television.

{¶ 4} The city attorney reviewed the petition in May 2017, as required by Columbus Charter 42–5. In a memorandum to the city clerk and council members, the city attorney stated his opinion that the petition violates the one-proposal rule, which provides that "[a] petition may only contain one proposal, which shall not address multiple or unrelated subject matters." Columbus Charter 42–2(d). Relators knew of the city attorney's concerns in May 2017, as shown in a letter dated May 16, 2017, in which their attorney expressed his disagreement with the city attorney's determination.

{¶ 5} Relators circulated the petition for signatures, and on February 6, 2018, Beard filed signed part-petitions with the city clerk. The Franklin County Board of Elections validated a sufficient number of signatures for the proposal to be placed on the May 8 ballot.

{¶ 6} On February 26, as required by Columbus Charter 42–9, the city attorney advised the city clerk and the city council on the legal sufficiency of the petition. In this memorandum, the city attorney again stated his opinion that the "petition violates the single-subject requirement." Based on his conclusion that the petition is not legally sufficient, the city attorney told the council that it could "reject forwarding these proposed amendments to the City Charter to the Board of Elections for voter consideration." The same day, the council passed an ordinance providing that the proposed charter amendment would not be placed on the May 8 ballot.

{¶ 7} Relators filed this original action for a writ of mandamus on March 5.

II. Arguments of the Parties Regarding Issuance of Writs of Mandamus

{¶ 8} Relators argue, relying on jurisprudence interpreting the one-subject rule in Article II, Section 15(D), of the Ohio Constitution, that the proposed charter amendments do not violate the one-proposal rule, because the provisions all share a "common purpose, which is the comprehensive improvement of Columbus City Council." Respondent members of the city council argue that we need not reach the merits of relators' claim, because it is barred under the doctrine of laches. Respondents also assert that this court should not follow the constitutional-one-subject-rule jurisprudence, because the one-subject rule "is not applicable" here. The council members argue that the proposed amendment fails because it contains "disjointed and unrelated topics and subjects." Respondent Franklin County Board of Elections argues that it carried out its legal obligation and duty by certifying the signatures on the petitions pursuant to the statutory framework governing charter-amendment initiatives and that it cannot place the issue on the ballot without city council acting first.

III. Relators' Motions

A. Motion for leave to file an amended complaint

{¶ 9} Relators moved for leave to amend their complaint to add as relators five additional members of Everyday People for Positive Change. This request is governed by Civ.R. 15(A), which provides that leave to amend shall be freely given "when justice so requires." See Tatman v. Fairfield Cty. Bd. of Elections , 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 7. Given the policy favoring the amendment of pleadings, and because the amended complaint does not change the substantive issues in this case or delay its resolution, we grant the motion. See State ex rel. Hackworth v. Hughes , 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 26–27.

B. Motions for leave to file amended affidavits

{¶ 10} In their brief, the council members argue that we should deny the writs because the affidavit supporting relators' complaint does not comply with S.Ct.Prac.R. 12.02(B)(2), which requires an affidavit supporting an original-action complaint to "be made on personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that the affiant is competent to testify to all matters stated in the affidavit." As the council members point out, we have "routinely dismissed original actions, other than habeas corpus, that were not supported by an affidavit expressly stating that the facts in the complaint were based on the affiant's personal knowledge." Hackworth at ¶ 24. "An affidavit that is made ‘to the best of’ an affiant's ‘personal knowledge and information’ does not satisfy S.Ct.Prac.R. 12.02(B)(2), because that type of statement does not make clear ‘which allegations are based on personal knowledge and which allegations are based simply on information.’ " State ex rel. Simonetti v. Summit Cty. Bd. of Elections , 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 11, quoting State ex rel. Commt. for the Charter Amendment for an Elected Law Dir. v. Bay Village , 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 13.

{¶ 11} In the affidavit filed with the complaint in this case, Beard said, "The statements that I make in this Affidavit are based upon my personal knowledge or upon information that I believe to be true ." (Emphasis added.) Because the affidavit is qualified in this way, it does not comply with S.Ct.Prac.R. 12.02(B)(2). In addition, an affidavit made by Beard that was submitted by relators as evidence fails to comply with S.Ct.Prac.R. 12.06 because it has the same defect.

{¶ 12} Relators filed two motions to amend and two new affidavits to address these problems. The new affidavits remove the offending language that qualifies the statements as based on information that Beard "believe[s] to be true"; therefore, they comply with S.Ct.Prac.R. 12.02(B)(2) and 12.06. But they also include other, relatively minor changes. Most notably, they state, "All the electors who signed the petition reside in Franklin County, Ohio. None of the electors who signed the petition reside in Delaware County, Ohio or in Fairfield County, Ohio." It will become evident later that these substantive changes are not material to our analysis.

{¶ 13} We ordinarily allow relators an opportunity to cure noncompliance with the personal-knowledge requirement. See State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 14. Therefore, because the other changes to the affidavits are immaterial, we grant the motions related to Beard's affidavits. Now that that defect has been cured, we reject the council members' argument that the writ should be denied for noncompliance with S.Ct.Prac.R. 12.02(B)(2).

IV. Law and Analysis

A. Laches

{¶ 14} We have applied laches in elections cases, which require relators to act with "[e]xtreme diligence and promptness." State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections , 86 Ohio St.3d 107, 113, 712 N.E.2d 696 (1999). "The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party." State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections , 74 Ohio St.3d 143, 145, 656 N.E.2d 1277 (1995).

{¶ 15} In claiming laches, the council members emphasize that the city attorney first opined that the proposed amendment violates the one-proposal rule in May 2017, soon after relators filed their precirculated petition with the city clerk. They say that relators delayed in challenging the city's determination by nearly ten mo...