State ex rel. Bolzenius v. Preisse, 2018-1221

• Decision Date: 14 September 2018
• Docket Number: No. 2018-1221,2018-1221
• Citation: 2018 Ohio 3708,119 N.E.3d 358,155 Ohio St.3d 45
• Parties: The STATE EX REL. BOLZENIUS et al. v. PREISSE et al.
• Court: Ohio Supreme Court

155 Ohio St.3d 45

119 N.E.3d 358

2018 Ohio 3708

The STATE EX REL. BOLZENIUS et al.

v.PREISSE et al.

No. 2018-1221

Supreme Court of Ohio.

Submitted September 11, 2018

Decided September 14, 2018

Terry J. Lodge Toledo, and Jensen Silvis, for relators.

Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Timothy A. Lecklider, Assistant Prosecuting Attorney, for respondents.

McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, and Ben F.C. Wallace, Columbus, for intervening respondents.

Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, Columbus, urging denial of the writ for amici curiae Affiliated Construction Trades Ohio Foundation, Ohio Chamber of Commerce, Columbus Realtors, Ohio Oil and Gas Association, Ohio Chemistry Technology Council, and American Petroleum Institute.

Per Curiam.

{¶ 1} In this expedited election case, relators, six Columbus electors,¹ seek a writ of mandamus to compel respondents, the members of the Franklin County Board of Elections (collectively, the "board members"),² to place a proposed city ordinance on the November 6, 2018 ballot. If adopted, the proposal would establish a "bill of rights" related to water, soil, and air protection and prohibit certain oil-and-gas-extraction activities within the city. The board members excluded the measure from the ballot, finding that the proposed ordinance is beyond the city's legislative power because it would, among other things, create new causes of action. Because the board members did not abuse their discretion, we deny the writ.

I. FACTUAL BACKGROUND

{¶ 2} Relators seek the adoption of a municipal ordinance that would establish for Columbus residents—and for "natural communities and ecosystems" in the city—a "Community Bill of Rights for Water, Soil, and Air Protection." Among the rights enumerated are rights to "Potable Water," "Clean Air," "Safe Soil," and "Peaceful Enjoyment of Home" and the "Right to be Free from Toxic Trespass." The proposal also would declare that "[n]atural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess the rights to exist and flourish within the City of Columbus."

{¶ 3} In an effort to secure and protect these rights, relators' proposal would prohibit most hydrocarbon-extraction activities within the city and impose strict liability on any government or corporation that violates its terms. It also purportedly would invalidate any permit or license "issued by any state, federal or international entity that would violate the prohibitions of this ordinance or any rights secured by this Ordinance, the Ohio Constitution, the United States Constitution, or other laws." Any violation of the ordinance would be a first-degree misdemeanor. The proposed ordinance provides that "any resident of the City of Columbus" may "enforce the rights and prohibitions of this Community Bill of Rights through an action brought in any court possessing jurisdiction over activities occurring within the City."

{¶ 4} On June 26, 2018, the committee formed to place the measure on the ballot submitted its part-petitions to the Columbus city clerk. After the Franklin County Board of Elections certified a sufficient number of valid signatures to qualify the measure for the ballot, the Columbus City Council, on July 30, passed an ordinance instructing the elections board to place the initiative petition on the November 2018 ballot. Before the matter was considered by the elections board, two Columbus electors, Loretta Settelmeyer and Robert Wall, protested the proposed measure, arguing that it does not comply with the Columbus City Charter's requirements for initiative petitions and that it is outside the city's legislative power. The board members agreed with the latter argument and on August 24 voted to exclude the initiative from the ballot.

{¶ 5} On August 28, relators filed this original action seeking a writ of mandamus to compel the board members to certify the initiative petition for placement on the ballot. On August 31, we granted a motion to intervene filed by Settelmeyer and Wall (collectively, the "intervening respondents").

II. ANALYSIS

A. The board members properly determined that the proposed ordinance is outside the city's power to enact legislation

{¶ 6} To be entitled to a writ of mandamus, relators must prove, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board members to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. Given the proximity of the November election, relators lack an adequate remedy in the ordinary course of the law. State ex rel. Ohio Liberty Council v. Brunner , 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27. To satisfy the first two requirements, relators must show that the board members engaged in fraud or corruption, abused their discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. Because relators make no allegation of fraud or corruption, they must show that the board members abused their discretion or disregarded the law when they rejected the initiative petition.

{¶ 7} In their first proposition of law, relators assert that they have a clear right to have their proposed ordinance placed on the ballot because their initiative petition satisfies the signature requirement and Columbus City Council passed an ordinance calling for placement of the measure on the ballot. Relators make three basic arguments in support of their claim. First, they contend that the board members have only a ministerial role with respect to initiative petitions, with no legitimate statutory authority to exclude a measure from the ballot for substantive legal reasons. Second, they argue that the separation-of-powers doctrine prevents the board members from deciding substantive legal questions and thus renders unconstitutional the statutory amendments introduced by 2016 Sub.H.B. No. 463 ("H.B. 463"), which permit boards of elections to determine whether a proposed ordinance is beyond a municipality's legislative power. Finally, they assert that Columbus Charter 42-11 prevents the board members from making substantive legal determinations regarding relators' proposed ordinance. We reject these arguments.

1. R.C. 3501.11(K)(1) authorizes a county board of elections to determine whether a proposed ordinance is beyond a municipality's legislative power

{¶ 8} Before the General Assembly enacted H.B. 463, we interpreted former R.C. 3501.11(K) (now R.C. 3501.11(K)(1) )—which grants county boards of elections the power to "[r]eview, examine, and certify the sufficiency and validity of petitions"—as authority for the boards "to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative." State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9. We reaffirmed that reading of former R.C. 3501.11(K) in State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections , 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696. In Sensible Norwood , we concluded that under former R.C. 3501.11(K), an elections board was authorized to exclude an initiative petition from the ballot if the initiative petition sought to enact municipal legislation that would be beyond a municipality's legislative power. Id. at ¶ 9-12.

{¶ 9} H.B. 463, effective April 6, 2017, introduced new provisions related to the authority and duty of elections boards to review the substantive terms of proposed ballot measures. For example, the act added R.C. 3501.11(K)(2), which requires elections boards to examine an initiative petition "to determine whether the petition falls within the scope of authority to enact via initiative." And it added R.C. 3501.38(M)(1)(a), which requires elections boards to examine an initiative petition to determine

[w]hether the petition falls within the scope of a municipal political subdivision's authority to enact via initiative, including, if applicable, the limitations placed by Sections 3 and 7 of Article XVIII of the Ohio Constitution on the authority of municipal corporations to adopt local police, sanitary, and other similar regulations as are not in conflict with general laws, and whether the petition satisfies the statutory prerequisites to place the issue on the ballot.

Importantly, H.B. 463 retained the language of former R.C. 3501.11(K), recodifying it as R.C. 3501.11(K)(1).

{¶ 10} In State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, we held that R.C. 3501.11(K)(1) authorizes elections boards " ‘to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative.’ " Id. at ¶ 11, quoting Youngstown at ¶ 9. Thus, without relying on the changes introduced by H.B. 463, we again held that an elections board has the authority to determine whether a municipal initiative falls within the municipality's legislative power. Id. at ¶ 15.

{¶ 11} Guided by Flak , we apply our pre-H.B. 463 caselaw in this case. Accordingly, we must determine whether the board members abused their discretion in determining that the proposed ordinance exceeds Columbus's legislative power. See Flak at ¶ 9, citing Jacquemin , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, at ¶ 9.

{¶ 12} The board member who moved to invalidate the initiative petition cited three reasons in support of his conclusion that the proposed ordinance is outside Columbus's legislative power: the proposal would regulate oil-and-gas extraction and transportation, it would regulate corporations, and it would create new causes of action. It is not necessary for us to...