State ex rel. DeBrosse v. Cool, 99-1430.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Per Curiam.
• Citation: 716 NE 2d 1114,87 Ohio St.3d 1
• Parties: THE STATE EX REL. DEBROSSE ET AL. v. COOL, PIQUA CITY CLERK, ET AL.
• Docket Number: No. 99-1430.,99-1430.
• Decision Date: 16 September 1999

87 Ohio St.3d 1
716 NE 2d 1114

THE STATE EX REL. DEBROSSE ET AL.
v.
COOL, PIQUA CITY CLERK, ET AL

No. 99-1430.

Supreme Court of Ohio.

Submitted and decided September 16, 1999.

87 Ohio St.3d 3

Donald J. McTigue, for relators

Stephen E. Klein, Piqua Director of Law, for respondents.

Per Curiam.

S.Ct.Prac.R. X(5) Standards; Expedited Consideration

Under S.Ct.Prac.R. X(5), we must now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. We apply the following standards to render this determination:

"`Under S.Ct.Prac.R. X(5), dismissal is appropriate if it appears beyond doubt, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of relator, that relator is not entitled to the requested extraordinary relief. If, on the other hand, the complaint may have merit, an alternative writ should issue. Finally, if it appears beyond doubt that relator is entitled to the requested extraordinary relief, a peremptory writ should issue.'" (Citations omitted.) State ex rel. Dist. 1199, Health Care & Social Serv. Union, AFL-CIO v. Lawrence Cty. Gen. Hosp. (1998), 83 Ohio St.3d 351, 352-353, 699 N.E.2d 1281, 1282, quoting State ex rel. Stern v. Mascio (1998), 81 Ohio St.3d 297, 298, 691 N.E.2d 253, 254.

With the foregoing guidelines in mind, we now proceed with our determination under S.Ct.Prac.R. X(5).

Mandamus; Peremptory Writ

Relators assert that they are entitled to the requested writ based on the pertinent initiative provisions of the charter:

"Section 15 Consideration of Initiated Ordinance by Commission.

"If an initiative petition or amended petition be found sufficient by the city clerk he shall immediately so certify and promptly submit the proposed ordinance therein set forth to the commission which shall at once read it and refer it to an

87 Ohio St.3d 4

appropriate committee, which may be a committee of the whole. Provision shall be made for public hearings upon the proposed ordinance before the committee to which it is referred. Thereafter the committee shall report the proposed ordinance to the commission, with its recommendations thereon, not later than sixty days after the date on which it was submitted to the commission by the city clerk. Upon receiving the proposed ordinance from the committee the commission shall proceed at once to consider it and to take final action thereon within thirty days from the date of such committee report

"Section 16 Submission of Initiated Ordinance to Electors.

"If the commission fails to pass an ordinance proposed by initiative petition or passes it in a form different from that set forth in the petition therefor, the committee of the petitioners hereinafter provided for may require that it be submitted to a vote of the electors either in its original form or with any change or amendment presented in writing either at a public hearing before the committee to which the proposed ordinance was referred or during the consideration thereof by the commission. If the committee of petitioners require the submission of a proposed ordinance to a vote of the electors they shall certify that fact to the city clerk, and file in his office a certified copy of the proposed ordinance in the form in which it is to be submitted, within ten days after final action on such proposed ordinance by the commission.

"Section 17 Election on Initiated Ordinance.

"Upon receipt of the certified copy of a proposed ordinance from the committee of the petitioners, the city clerk shall certify that fact to the commission at the next regular meeting. If any election is to be held not more than one year nor less than thirty days after the receipt of the clerk's certificate by the commission, the proposed ordinance shall be submitted to a vote of the electors at the first such election unless the commission provides for submitting it to the electors at a special election to be held within the time aforesaid. If no other election is to be held within one year and not less than thirty days after the receipt of the clerk's certificate as aforesaid, the commission shall provide for submitting the proposed ordinance to the electors at a special election to be held within that time. If, when submitted to the electors, a majority of those voting on a proposed ordinance vote in favor thereof, it shall be an ordinance of the city. Initiated ordinances adopted by the electors shall be published, and may be amended or repealed by the commission, as in the case of other ordinances."

After Piqua Clerk Cool certified the sufficiency of the petition, she failed to submit it to the commission, and the commission refused to follow the procedures specified in Section 15 of the Piqua Charter. Thereafter, by certification pursuant to Section 16, relators required the submission to a vote of electors of

87 Ohio St.3d 5

the proposed ordinance. Respondents Cool and the commission failed to act on relators' certification as required by Section 17 of the charter

Respondents refused to proceed in accordance with Sections 15, 16, and 17 of the charter based on their claims that the initiative petition was excepted from the charter initiative provisions as an appropriation ordinance, or that the proposed ordinance would require an illegal expenditure without an appropriation,...