State ex rel. Ditmars v. McSweeney

• Decision Date: 08 March 2002
• Docket Number: No. 02-297.,02-297.
• Court: Ohio Supreme Court
• Parties: THE STATE EX REL. DITMARS v. McSWEENEY, CLERK, ET AL.

94 Ohio St.3d 472

764 NE 2d 971

THE STATE EX REL. DITMARS v. McSWEENEY, CLERK, ET AL.

No. 02-297.

Supreme Court of Ohio.

Submitted March 5, 2002.

Decided March 8, 2002.

Phillip L. Harmon, for relator.

Janet E. Jackson, Columbus City Attorney, Daniel W. Drake and Susan E. Ashbrook, Assistant City Attorneys, for respondent Timothy McSweeney, Columbus City Clerk.

Vorys, Sater, Seymour & Pease L.L.P., Bruce L. Ingram and Matthew R. Wilson; Crabbe, Brown, Jones, Potts & Schmidt and Larry H. James, for intervening respondents.

Per Curiam.

Relator, David Ditmars, is a resident of the city of Columbus, Ohio, and is a member of a petitioning committee that was formed to circulate an initiative petition. The initiative petition contains a proposed ordinance entitled "Ordinance to Protect and Preserve the Big Darby Watershed."¹ The proposed ordinance provides that for five years after the ordinance becomes effective, Columbus may not permit within the Big Darby watershed (1) any extension of an existing, or construction of any new, public drinking-water delivery system or public sewer system; (2) any extension of an existing, or construction of any new, private sewage system; and (3) any material modification of the natural surface water drainage topography.

On March 26, 2001, Ditmars filed a certified precirculation copy of the initiative petition with the office of respondent Timothy McSweeney, the City Clerk of Columbus. On October 3, 2001, Ditmars and others filed the initiative petition, which consisted of 888 part-petitions containing 12,221 signatures, with the city clerk's office. On each of the part-petitions, the circulator signed the preprinted circulator statement, which had the following declaration:

"I___(printed name of circulator), declare under penalty of election falsification that I am a qualified elector of the State of Ohio and reside at the address appearing below my signature hereto; that I am the circulator of the foregoing petition paper containing___(number) signatures; that I witnessed the affixing of every signature, that all signers were to the best of my knowledge and belief qualified to sign, and that every signature is to the best of my knowledge and belief the signature of the person whose signature it purports to be." See R.C. 3501.38(E). None of the circulator statements on the part-petitions was notarized or otherwise sworn to by the circulator under oath.

McSweeney sent the petition to the Franklin County Board of Elections to verify the number of valid signatures of registered Columbus electors. On October 11, 2001, the board returned the petition to McSweeney with its report that the petition contained more than the required number of valid signatures.

On October 15, 2001, McSweeney certified the petition and submitted the proposed ordinance to the Columbus City Council. On October 22, the city council unanimously voted not to enact the proposed ordinance. The city council then immediately adopted Ordinance No. 1760-01, which was emergency legislation to submit the proposed ordinance concerning the Big Darby watershed to the "electors of the City of Columbus, Ohio pursuant to Section 44 of the City Charter for their approval or rejection at an election to be held May 7, 2002." The ordinance further provided that the "Clerk of this Council shall forthwith serve a certified copy of this Ordinance on the Franklin County, Ohio Board of Elections." Ordinance No. 1760-01 also acknowledged that "pursuant to Columbus City Charter Section 44 Council is required forthwith to order and provide for the submission of such proposed ordinance which has been rejected to a vote of the electors of the City at the next ensuing election to be held not less than sixty (60) nor more than one hundred twenty (120) days thereafter; or, if no such election will be held, at the next ensuing election." On October 23, Columbus Mayor Michael Coleman signed Ordinance No. 1760-01.

McSweeney did not, as required by Ordinance No. 1760-01, serve a certified copy of that ordinance on the board of elections. Instead, by letter dated February 13, 2002, almost four months after the city council ordered him to serve the certified copy of the ordinance, McSweeney notified members of the petitioning committee, including Ditmars, that he would not certify the initiative to the board of elections because the petition was insufficient and invalid. McSweeney stated that the Columbus City Attorney had reviewed the petition and concluded that it was defective because it lacked the circulators' affidavits required by Columbus Charter Section 42.

On February 15, 2002, Ditmars instituted this expedited election case. Ditmars requested a writ of mandamus to compel McSweeney and the board of elections to "fulfill all of the legal duties imposed upon [them] under Columbus City Council Ordinance No. 1760-01" and "to specifically compel the Board to place the Proposed Ordinance on the City of Columbus May 7, 2002 ballot." We granted the motion of Rocky Lee Blauser and Blauser Family Partnership² to intervene as respondents, and the parties filed a joint application to dismiss the board of elections from the case because the action was premature as to the board, which had not had the initiative petition certified to or filed with it. On March 5, we granted the joint application and dismissed the board of elections from this case. McSweeney and the intervening respondents filed motions to dismiss, and the parties filed evidence and briefs pursuant to the expedited election schedule in S.Ct.Prac.R. X(9).

This cause is now before the court for a consideration of the merits.

Ditmars requests a writ of mandamus to compel McSweeney to fulfill his legal duties under Columbus Ordinance No. 1760-01, i.e., to "forthwith serve a certified copy of [the] Ordinance on the Franklin County, Ohio Board of Elections." In order to be entitled to the requested extraordinary relief in mandamus, Ditmars must establish a clear legal right to have McSweeney comply with Ordinance No. 1760-01, a corresponding clear legal duty on the part of McSweeney to so comply, and the lack of an adequate legal remedy in the ordinary course of the law. State ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections (2001), 93 Ohio St.3d 529, 532, 757 N.E.2d 314. Ditmars has established that he lacks an adequate remedy in the ordinary course of the law, so the dispositive issue is whether he has established his right to the requested relief and McSweeney's duty to provide it.

Sufficiency and Validity of Initiative Petition: Affidavit Requirement of Columbus Charter

Ditmars first asserts that McSweeney lacked authority to refuse to certify the initiative to the board of elections because his stated reason for so refusing is erroneous. McSweeney refused to certify the initiative to the board of elections because the petition lacked the circulators' affidavits required by the charter. Section 42 of the Columbus Charter specifies that affidavits of circulators must be attached to each initiative petition paper:

"The signatures to any such petition need not all be appended to one paper, but to each such paper there shall be attached an affidavit by the circulator thereof stating the number of signers to such part of the petition and that such signatures were appended thereto in the presence of affiant." (Emphasis added.)

Ditmars contends that although the circulator statements in the initiative petition were unsworn and not declared in the presence of an officer authorized to administer oaths, they complied with applicable legal provisions because Section 42 of the Columbus Charter does not use the terms "notary" and "notarization," Section 42 does not conflict with R.C. 3501.38(E),³ and the circulator statements contained in the initiative petition fully complied with R.C. 3501.38(E). These contentions are meritless.

The word "affidavit" is not defined in the Columbus Charter. Undefined language used in a municipal charter must be construed according to its ordinary and common usage. State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 5, 716 N.E.2d 1114. Applying the ordinary and common meaning of the word here, an "affidavit" is a "voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths." Black's Law Dictionary (7 Ed.1999) 58; see, also, Webster's Third New International Dictionary (1986) 35, defining "affidavit" as "a sworn statement in writing made esp. under oath or on affirmation before an authorized magistrate or officer." Therefore, the mere fact that Section 42 of the Columbus Charter does not include terms like "notary" or "notarization" in addition to "affidavit" does not obviate the requirement that circulators of initiative petitions must declare under oath before an officer authorized to administer oaths the number of signers on the part petitions and that those signatures were made in their presence.

Further, Section 42 of the Columbus Charter does conflict with R.C. 3501.38(E) insofar as the charter provision requires circulator affidavits and the statute does not. Because the charter provision conflicts with the statute on the affidavit requirement, the charter provision prevails. "`In matters of local self-government, if a portion of a municipal charter expressly conflicts with parallel state law, the charter provisions will prevail.'" State ex rel. Fenley v. Kyger (1995), 72 Ohio St.3d 164, 165, 648 N.E.2d 493, quoting State ex rel. Lightfield v. Indian Hill (1994), 69 Ohio St.3d 441, 442, 633 N.E.2d 524; Sections 3 and 7, Article XVIII, Ohio Constitution.

Based on the foregoing, McSweeney correctly concluded that the initiative petition was insufficient and invalid because it did not comply with the affidavit requirement of Columbus Charter Section 42. This conclusion is consistent with precedent. See State ex rel. Van de Kerkhoff v. Dowling (1991), 61 Ohio St.3d 55, 572...