State, ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections

• Decision Date: 25 September 1991
• Docket Number: No. 90-2123,90-2123
• Citation: 577 N.E.2d 645,62 Ohio St.3d 17
• Parties: CITY OF BEDFORD, Appellant, v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY et al., Appellees.
• Court: Ohio Supreme Court

Page 17

62 Ohio St.3d 17

577 N.E.2d 645

[The STATE, ex rel.] CITY OF BEDFORD, Appellant, v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY et al., Appellees.

No. 90-2123.

Supreme Court of Ohio.

Submitted July 31, 1991.

Decided Sept. 25, 1991.

Calfee, Halter & Griswold, Mark I. Wallach, John E. Gotherman and Smith R. Brittingham IV, Cleveland, for appellant.

Stephanie Tubbs Jones, Pros. Atty., and Michael P. Butler, Cleveland, for appellee Board of Elections.

Lee I. Fisher, Atty. Gen., and Catherine M. Cola, Columbus, for appellee Secretary of State.

PER CURIAM.

I Clear Right and Clear Duty

The board of elections and Secretary of State implicitly agree that they have a duty to conduct elections that Bedford has the power to authorize. Thus, to establish that the city does not have the power to authorize this advisory election, these election authorities principally rely, as the court of appeals did, on State, ex rel. Cleveland City Council, v. Cuyahoga Cty. Bd. of Elections (1974), 40 Ohio App.2d 299, 69 O.O.2d 273, 318 N.E.2d 889.

In Cleveland City Council, the court of appeals determined that the city could not authorize an election of the question "whether or not there should be city-wide laws requiring the registration of firearms." Id. at 300, 69 O.O.2d at 274, 318 N.E.2d at 890. The court held that the city had no power to submit the proposed ordinance to the electorate absent charter or statutory authorization. Id. at 305, 69 O.O.2d at 277, 318 N.E.2d at 893; accord 1958 Ohio Atty.Gen.Ops. No. 2332. The court also held:

"Municipal [o]rdinances must accomplish some substantive or procedural governmental purpose. This [o]rdinance is nothing more than an 'advisory opinion' or local 'Gallup Poll' and is of no legal consequence. It merely proposes to advise the City Council of voter attitudes on the broad general subject of gun registration. Legislators are elected by the voters to perform their duties as legislators and this function cannot be delegated by the legislators to the voters. If the electorate were to vote on all proposed ordinances, it would eliminate a need for legislative bodies. Further, costly election machinery cannot be used by legislative bodies to determine community attitudes and sentiments on public issues." Id. at 306, 69 O.O.2d at 278, 318 N.E.2d at 893-894.

Cleveland City Council has been the polestar of Ohio case law on advisory elections for years. Bedford, however, challenges Cleveland City Council 's holding that a city cannot act without express charter or statutory authorization as being inconsistent with the city's constitutional powers of local self-government. Bedford also attacks the conclusion that public policy disfavors advisory elections.

A

The Exercise of Home Rule Powers Not

Authorized by Charter or Statute

Bedford essentially concedes that its proposed ballot issue is only a first step to amending the city charter and, thus, that the question does not propose "alterations, revisions or amendments" pursuant to Section 6, Article XIII of the charter. The city contends, however, that it has the power to call the election without a specific enabling charter provision or statute because (1) municipal elections on matters of local concern are within the powers of local self-government conferred by Section 3, Article XVIII of the Ohio Constitution, and (2) these powers are self-executing. We agree.

The board of elections and Secretary of State do not dispute the purely local character and effect of the question Bedford proposes. Thus, Bedford's first premise is established by Fitzgerald v. Cleveland (1913), 88 Ohio St. 338, 347, 103 N.E. 512, 514, where, in holding that a city charter could provide for a method of nominating local candidates other than that prescribed by the General Assembly, this court said:

"It is clear upon reason and authority that municipal elections are and should be regarded as affairs relating to the municipality itself, and, in the absence of fundamental limitations prohibiting, are things that may be provided for by the local government.* * * " Accord Reutener v. Cleveland (1923), 107 Ohio St. 117, 133, 141 N.E. 27, 31.

Bedford's second premise is established by Perrysburg v. Ridgway (1923), 108 Ohio St. 245, 140 N.E. 595, paragraphs one and three of the syllabus, which state:

"1. Since the Constitution of 1912 became operative, all municipalities derive all their 'powers of local self-government' from the Constitution direct[ly], by virtue of Section 3, Article XVIII, thereof.

" * * *

"3. The above constitutional grant of power to municipalities is 'self-executing,' in the sense that no legislative action is necessary in order to make it available to the municipality."

Perrysburg stands for the principle that municipal power is derived from the Ohio Constitution, not from a charter. Northern Ohio Patrolmen's Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 380-381, 15 O.O.3d 450, 453-454, 402 N.E.2d 519, 523-524. Indeed, because a municipal charter is "neither a source of power nor necessary for its exercise[,]" Vaubel, Municipal Home Rule in Ohio (1975), 3 Ohio N.U.L.Rev. 1, 37, we have held that a city possesses home rule powers regardless of whether it has adopted a charter. State, ex rel. Arey, v. Sherrill (1944), 142 Ohio St. 574, 27 O.O. 505, 53 N.E.2d 501, paragraph one of the syllabus. Thus, contrary to Cleveland City Council and the elections authorities' argument, Bedford needs no charter authorization to call the instant election.

Nor has this court required a statutory source for a municipality to exercise the powers of local self-government. Instead, we have said that these powers are "inherent as an incident" of the self-executing constitutional grant in Section 3, Article XVIII of the Ohio Constitution. State, ex rel. McClure, v. Hagerman (1951), 155 Ohio St. 320, 323, 44 O.O. 309, 311, 98 N.E.2d 835, 837.

State, ex. rel. Gordon, v. Rhodes (1951), 156 Ohio St. 81, 45 O.O. 93, 100 N.E.2d 225, confirms that home rule powers granted by Section 3, Article XVIII of the Ohio Constitution exist without the aid of legislation and that those powers may be exercised freely and fully where not limited by relevant charter, statutory or constitutional provisions. In Gordon, the relator sought a writ of mandamus to compel city officials to enforce an ordinance, purportedly passed pursuant to certain state statutes, authorizing them to issue mortgage revenue bonds to finance the city's purchase of off-street parking facilities. The respondent officials had refused to execute the bonds, expressing doubt that the state could empower cities to issue mortgage bonds to finance such projects. This court held that cities have the authority to issue bonds for such a purpose without enabling legislation, because that authority was within the general home rule powers conferred by Section 3, Article XVIII of the Ohio Constitution, and was not limited by any relevant charter, statutory or constitutional provision. No such limitations existed in Gordon, and, therefore, we granted the writ.

The reasoning in Gordon, which manifests that the powers of local self-government are available unless restricted, applies here. Thus, this case does not turn, as Cleveland City Council concludes and the elections authorities submit, on whether the city charter or any statute authorizes an advisory election on the proposed Bedford charter amendment. Under Gordon, our focus must instead be on whether the Bedford Charter, the Revised Code, or the Ohio Constitution prevents the election.

Applying this test, we first find nothing in the city charter that expressly prohibits the instant advisory election. Sections 4 and 6, Article XIII of the Bedford Charter provide for elections on amendments proposed by a two-thirds vote of the city council or by petition of ten percent of the city electors, consistent with Section 9, Article XVIII of the Ohio Constitution, and on amendments proposed by a charter review commission. These sections, however, do not provide that only the amendments themselves may be placed on the ballot. Instead, Section 1, Article I of the charter provides:

" * * * [The city] shall have all powers of local self-government which now are, or hereafter may be granted to municipalities by the Constitution or laws of the State of Ohio, either expressly or by implication, as fully as though every such power were enumerated herein. The enumeration of or reference to particular powers by this Charter shall not be construed to be exclusive." See Gordon, supra, at 83, 45 O.O. at 94, 100 N.E.2d at 227.

The charter also does not implicitly prevent the advisory election. The election is proposed only as a precursor to, not in place of, an election on the amendment itself. Thus, this is not a situation like Cuyahoga Falls v. Robart (1991), 58 Ohio St.3d 1, 5, 567 N.E.2d 987, 991-992, in which we cited Cleveland City Council in holding that a charter provision requiring the city law director to represent the city in all litigation implicitly prevented the city from replacing the law director with outside counsel for this purpose. Indeed, we also said in Robart that the charter provision did not affect the city's ability to employ outside counsel to assist the law director. Id. at 5, 567 N.E.2d at 991-992, fn. 2. In doing so, we acknowledged a city's authority to act, as here, in ways not specified by, but not in violation of, its charter.

Gordon next requires us to consider the Revised Code. However, we are not aware of any statute that prohibits the advisory election Bedford proposes, and none is cited by the parties. Thus, we turn directly to Section 9, Article XVIII of the Ohio Constitution, which governs the charter amendment process.

As mentioned, Section 9, Article XVIII, Ohio Constitution and Section 4, Article XIII of the Bedford Charter contain essentially the same procedure for charter amendments while Section 6, Article XIII of the...