State ex rel. Ebersole v. Del. Cnty. Bd. of Elections, 2014–1520.
| Citation | 20 N.E.3d 678,140 Ohio St.3d 487,2014 Ohio 4077 |
| Decision Date | 19 September 2014 |
| Docket Number | No. 2014–1520.,2014–1520. |
| Parties | The STATE ex rel. EBERSOLE et al., v. DELAWARE COUNTY BOARD OF ELECTIONS et al. |
| Court | United States State Supreme Court of Ohio |
Callender Law Group and Christopher Burch, Concord Township, for relators.
Carol O'Brien, Delaware County Prosecuting Attorney, and Christopher D. Betts and Andrew J. King, Assistant Prosecuting Attorneys, for respondent Delaware County Board of Elections.
Vorys, Sater, Seymour & Pease, L.L.P., and Bruce L. Ingram, Joseph R. Miller, and Christopher L. Ingram, Columbus, for intervening respondent the Center at Powell Crossing, L.L.C.
{¶ 1} On June 17, 2014, the city council of Powell, Ohio, approved Ordinance No. 2014–10, a development plan for property in downtown Powell. In response, relators, Brian Ebersole, Sharon Valvona, and Thomas Happensack, formed a committee to circulate petitions to place three items on the November 4, 2014 ballot: a referendum to block Ordinance No. 2014–10 from taking effect, an initiative to pass an ordinance repealing Ordinance No. 2014–10, and an amendment to the city charter that would, among other things, nullify Ordinance No. 2014–10.
{¶ 2} The city council approved the referendum and initiative for placement on the ballot. However, the Delaware County Board of Elections sustained a protest and refused to place them on the ballot. In this case, relators seek a writ of mandamus to compel the board of elections to place the referendum and initiative on the ballot.1 We deny the writ for the reasons explained below.
{¶ 3} The Ohio Constitution reserves the powers of initiative and referendum to the people of each municipality "on all questions which such municipality may now or hereafter be authorized by law to control by legislative action," in the manner provided by law. Ohio Constitution, Article II, Section 1f. In this case, the city charter defines the manner in which these powers are exercised.
{¶ 4} "Any ordinance passed by the Council shall be subject to referendum, except emergency ordinances * * *." Powell City Charter, Article VI, Section 6.04. The process begins with the filing of a petition in the office of the city council clerk, calling for the repeal of an ordinance passed within the last 30 days. The petition must contain signatures from electors of the city equal to at least 10 percent of the total votes cast at the last preceding general municipal election. Id .
{¶ 5} The clerk must transmit a certified copy of the petition to the board of elections within ten days. The board's responsibility at that point is merely to verify the signatures on the petition. Within ten days, the board must return the petition to the clerk, with a statement attesting to the number of electors who signed the petition. The clerk must then submit the petition and statement to the council on the date of its next regular meeting. Id .
{¶ 6} "Council shall determine the sufficiency and validity of the petition." Id . The meaning of the phrase "sufficiency and validity" is among the disputes at the heart of this case.
{¶ 7} If council determines that the petition is sufficient and valid, then at that meeting, council shall read and act upon the petition. Either council will itself repeal the existing ordinance or the clerk will provide for submission of the new proposed ordinance to a vote of the city electors. In that case, the board of elections shall submit the ordinance to the electors at the next general election occurring subsequent to 75 days after receipt of the ordinance from the clerk of council.
{¶ 8} The rules governing initiatives are identical to those for referenda (with one minor distinction not relevant here). Id . at Section 6.02.2
{¶ 9} In 2005, the city council amended its zoning code to create the Downtown Business District. The 2005 ordinance established two new planned districts, one of which was the Downtown Business District. Permissible property uses in the Downtown Business District included retail shops, office facilities, and multifamily dwellings. At the same time, council created the "Downtown District Overlay District," which imposed additional zoning requirements on the property in the Downtown Business District.
{¶ 10} The property located at 147 West Olentangy Street in Powell, Ohio, lies in the Downtown Business District. The property consists of 8.3 acres of largely undeveloped land.
{¶ 11} The property owner, the Center at Powell Crossing, L.L.C. ("Powell Crossing"), filed a final-development-plan application with the city, proposing a new construction on the property that would include 14,000 square feet of retail space and 64 residential units. On June 17, 2014, the city council approved the development plan by adopting Ordinance No. 2014–10.
{¶ 12} On July 17, 2014, relators filed petitions with the city council clerk in support of three separate ballot measures:
{¶ 13} (1) A referendum to reject Ordinance No. 2014–10.
{¶ 14} (2) An initiative to approve an ordinance repealing Ordinance No. 2014–10.
{¶ 15} (3) An amendment to the city charter to establish a new comprehensive plan for zoning and development.
{¶ 16} The council clerk transmitted the three petitions to the Delaware County Board of Elections on July 28, 2014. On August 1, 2014, Powell Crossing and Donald R. Kenney Jr. filed a notice of protest with the board, contesting all three petitions. The board members deferred consideration of the challenges, concluding that at that stage of the process, the role of the board was limited to determining the validity of the petition signatures.
{¶ 17} The board voted to validate 376 signatures on the referendum petition, 367 signatures on the repeal initiative petition, and 378 signatures on the charter-amendment petition, and notified the city council of those validations.
{¶ 18} Ordinance No. 2014–41, to place the charter amendment on the November ballot, received its first reading before the city council on August 5, 2014. The council took up the referendum as proposed Resolution No. 2014–16, and the repeal initiative as proposed Resolution No. 2014–17, and voted to table both matters.
{¶ 19} The next city council meeting occurred on August 19, 2014. The council revised slightly the number of valid signatures on each petition from the numbers certified by the board of elections, but concluded nevertheless that each of the three ballot measures had a sufficient number of valid signatures to qualify for the ballot. The council then voted unanimously to approve Resolution No. 2014–16 and Resolution No. 2014–17 and not to adopt Ordinance No. 2014–41.
{¶ 20} The board of elections met to consider the protests against the referendum and initiative on August 26, 2014. (The protest against the charter amendment was of course moot.) At that meeting, the board voted (1) to accept the protest of the referendum on the grounds that the subject matter was administrative in nature and therefore not subject to referendum, to accept the protest of the initiative on the same grounds, to reject both protests to the extent that they objected to the manner in which the petitions indicated the specific precinct of the signers, and to accept the protest against both petitions on the grounds that the format of the petitions did not comply with the Powell City Charter and forms prescribed by the secretary of state.
{¶ 21} As a result of the combined actions of the city council and the board of elections, none of the three ballot measures is currently certified for the November 4, 2014 ballot.
{¶ 22} On September 2, 2014, relators filed this mandamus action to compel the Delaware County Board of Elections to place the referendum and initiative on the ballot. We granted leave to intervene to Powell Crossing and denied intervention to Donald Kenney.
Legal requirements for mandamus
{¶ 23} To be entitled to a writ of mandamus, relators must establish that (1) they have a clear legal right to have their ballot measure(s) presented to the voters, (2) respondents have a corresponding legal duty to submit the ballot measure(s) to the electors of Powell on November 4, 2014, and (3) relators possess no adequate remedy in the ordinary course of the law. Morris v. City Council of Macedonia, 71 Ohio St.3d 52, 54, 641 N.E.2d 1075 (1994).
{¶ 24} Because of the proximity of the November 4, 2014 election, and specifically the September 20, 2014 deadline for finalizing UOCAVA ballots,3 relators have established that they lack a 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.
{¶ 25} At the outset, we must once again decide whether laches bars an expedited elections case.4 The board of elections sustained the two protests on August 26, 2014. Relators filed this case on September 2, 2014, seven days later. The board accuses relators of unreasonable delay.
{¶ 26} But in fact the actual delay was only four days. August 30 and 31 fell on a weekend, and September 1 was Labor Day, so the clerk's office was not open to accept filings. Under these circumstances, we decline to bar the suit on the grounds of laches.
The city council acted in its administrative capacity
{¶ 27} City councils can act in an administrative capacity. Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968), paragraph one of the syllabus. And when they act in an administrative, rather than legislative, capacity, their resolutions and ordinances are not subject to referendum. Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539, 697 N.E.2d 181 (1998), paragraph two of the syllabus. The board of elections rejected the referendum petition because it believed that Ordinance No. 2014–10 was passed by the city council in its administrative capacity.
{¶ 28} Relators offer a number of responses to this contention. First, t...
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