State ex rel. Citizens for Responsible Green Gov't v. City of Green, 2018-1091

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Per Curiam.
• Citation: 2018 Ohio 3489,118 N.E.3d 236,155 Ohio St.3d 28
• Parties: The STATE EX REL. CITIZENS FOR RESPONSIBLE GREEN GOVERNMENT v. The CITY OF GREEN et al.
• Docket Number: No. 2018-1091,2018-1091
• Decision Date: 30 August 2018

155 Ohio St.3d 28
118 N.E.3d 236
2018 Ohio 3489

The STATE EX REL. CITIZENS FOR RESPONSIBLE GREEN GOVERNMENT
v.
The CITY OF GREEN et al.

No. 2018-1091

Supreme Court of Ohio.

Submitted August 24, 2018
Decided August 30, 2018

David A. Mucklow, for relator.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Peter W. Nischt, Assistant Prosecuting Attorney, for respondent Summit County Board of Elections.

Roderick Linton Belfance, L.L.P., William G. Chris, Lawrence R. Bach, Akron, and Todd A. Mazzolla, for respondents City of Green and Finance Director Steven Schmidt.

Bricker & Eckler, L.L.P., James J. Hughes III, Frank L. Merrill, and Maria J. Armstrong, Columbus, urging denial of the writ for amicus curiae, Nexus Gas Transmission, L.L.C.

Per Curiam.

155 Ohio St.3d 28

{¶ 1} In this expedited election case, relator, Citizens for Responsible Green Government ("the committee"), seeks a writ of mandamus to compel respondents, city of Green, Green Finance Director Steven Schmidt, and the Summit County Board of Elections, to place a referendum on the November 6, 2018 general-election ballot. For the reasons set forth below, we dismiss the complaint based on laches and deny the committee's motion for leave to supplement the evidence.

The evidence in the record

{¶ 2} The present case arises from the efforts of Nexus Gas Transmission, L.L.C. ("Nexus"), to construct an interstate natural-gas pipeline system, which would run through the city of Green. On August 25, 2017, the Federal Energy Regulatory Commission issued a Certificate of Public Convenience and Necessity to Nexus, authorizing construction of an interstate natural-gas pipeline. On September 19, 2017, the director of the Ohio Environmental Protection Agency issued a Section 401 Water Quality Certification for the project. See Federal Water Pollution Control Act, 33 U.S.C. 1341.

{¶ 3} Nexus sought to obtain easements and rights of way through the city to allow for construction of the pipeline. But the city opposed the project. The city appealed the director's decision to the Environmental Review Appeals Commission and separately petitioned the United States Court of Appeals for the Sixth Circuit to review the director's issuance of the certification. Green v. Ohio Environmental Protection Agency , 6th Cir. No. 17-4016.

{¶ 4} Meanwhile, on October 2, 2017, Nexus filed in the United States District Court for the Northern District of Ohio a complaint seeking an order of condemnation of permanent and temporary easements across multiple parcels of privately owned land.¹

155 Ohio St.3d 29

Nexus Gas Transm., L.L.C. v. Green , N.D.Ohio No. 5:17-cv-02062-JRA. On December 28, 2017, the court ruled that Nexus had the right to condemn easements through the city and issued a preliminary injunction authorizing Nexus to immediately possess certain properties for the limited purposes of conducting environmental and other surveys. The city

118 N.E.3d 240

appealed the district court's judgment to the Sixth Circuit Court of Appeals.

{¶ 5} The city entered into a settlement agreement with Nexus, effective January 31, 2018, to resolve the litigation. In return for Nexus's payment of $7,500,000, the city agreed, among other things, to grant Nexus easement rights across certain properties.

{¶ 6} On February 5, 2018, the city's mayor introduced Resolution No. 2018-R09, captioned "A Resolution Approving a Settlement of Pending Litigation, Authorizing the Mayor to Enter Into a Settlement Agreement and Related Documents Thereto, And Declaring An Emergency." Section One of the resolution approved the settlement agreement, which was attached as an exhibit and incorporated by reference. Section Four declared an emergency and provided that the resolution would become effective immediately if approved by three-fourths of the city-council members.

{¶ 7} On February 7, 2018, the resolution passed by a four-to-three vote. Because it failed to garner three-fourths of the votes, however, it did not pass as an emergency matter. See Green Codified Ordinances 4.10(A) ("Each emergency resolution and ordinance shall contain a statement of the necessity for such emergency action, and its enactment shall require the affirmative vote of three-fourths (3/4) of the members of Council"). So City Council Clerk Molly Kapeluck crossed out the words "And Declaring an Emergency" from the title, as well as the whole of Section Four, before the appropriate officials signed to indicate passage of the resolution.

{¶ 8} On March 8, 2018, the committee submitted 71 part-petitions to Finance Director Schmidt, calling for a referendum on Resolution No. 2018-R09. Attached to each part-petition was a copy of the resolution as introduced , not the certified version containing the clerk's cross-outs. The copy of the resolution appended to the referendum petition also did not include three other components that were part of the certified version: the signatures of the city-council president, the mayor, and the city law director; the roll-call tabulation of the votes of city-council members; and the settlement agreement.

155 Ohio St.3d 30

{¶ 9} On April 19, 2018, the Summit County Board of Elections validated 1,284 petition signatures. Of those, however, it called into question the validity of 49 signatures, leaving the final decision on those signatures to city council. The parties do not dispute that even the lower figure of 1,235 signatures would be sufficient for the referendum to qualify for the ballot.

{¶ 10} Once a county board of elections certifies a sufficient number of signatures, the auditor or clerk of the municipality certifies the sufficiency and validity of the petition to the board, for placement of the referendum on the ballot. R.C. 731.29. In Green, the finance director, as the fiscal officer for the city, is the equivalent of the auditor. Green Codified Ordinances 6.3(B).

{¶ 11} On June 11, 2018, Schmidt sent a letter to the director of the board of elections declining to certify the petition because he deemed it "facially invalid and insufficient." Schmidt characterized the petition as misleading because the attached copy of the resolution differed from the certified version of the resolution in the ways described above. He also suggested the possibility that the underlying ordinance was an administrative action and therefore not subject to referendum.

Procedural history

{¶ 12} The committee commenced this suit for a writ of mandamus on August 6, 2018. The committee requested a writ of mandamus to (1) compel Schmidt to certify

118 N.E.3d 241

the petition to the board of elections for inclusion of the referendum on the next general-election ballot and (2) compel the board to place the referendum on the ballot. We imposed an expedited briefing schedule pursuant to S.Ct.Prac.R. 12.08. 153 Ohio St.3d 1457, 2018-Ohio-3132, 103 N.E.3d 834.

{¶ 13} The committee filed its merit brief on August 10, three days before respondents' answer was due. Because of the committee's early filing, the city and Schmidt (collectively, "the city") moved for additional time to submit briefs and evidence, which we granted. After the city filed its merit brief, the committee filed a reply brief along with a motion for leave to submit three additional exhibits into evidence. The city filed a memorandum in opposition to the motion on August 21.

{¶ 14} We have also received a merit brief from the board of elections as well as an amicus brief in support of respondents from Nexus.

Legal analysis

{¶ 15} To prevail in this mandamus case, the committee must establish, by clear and convincing evidence, a clear legal right to the requested relief, a clear legal duty on the part of the city and/or the board of elections to provide that relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Ebersole v. Powell City Council , 149 Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d 1245, ¶ 10. Given the proximity of the November election, the committee lacks an adequate remedy in the ordinary course of the law.

155 Ohio St.3d 31

State ex rel. Greene v. Montgomery Cty. Bd. of Elections , 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.

{¶ 16} The city and amicus curiae contend that the committee's complaint is barred by the doctrine of laches. Laches may bar relief in an election-related matter if the party seeking relief has failed to act with the " ‘utmost diligence.’ " State ex rel. Monroe v. Mahoning Cty. Bd. of Elections , 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d 524, ¶ 30, quoting State ex rel. Fuller v. Medina Cty. Bd. of Elections , 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7. The elements of a laches defense 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. Carrier v....