State, ex rel. Esch, v. Lake County Bd. of Elections

• Decision Date: 28 August 1991
• Docket Number: No. 90-2142,90-2142
• Citation: 575 N.E.2d 835,61 Ohio St.3d 595
• Parties: The STATE, ex rel. ESCH, Appellee, v. LAKE COUNTY BOARD OF ELECTIONS, Appellant.
• Court: Ohio Supreme Court

Page 595

61 Ohio St.3d 595

575 N.E.2d 835

The STATE, ex rel. ESCH, Appellee, v. LAKE COUNTY BOARD OF ELECTIONS, Appellant.

No. 90-2142.

Supreme Court of Ohio.

Submitted May 6, 1991.

Decided Aug. 28, 1991.

Reminger & Reminger and Nick C. Tomino, Cleveland, for appellee.

Steven C. LaTourette, Pros. Atty., and Michael P. Brown, Painesville, for appellant.

PER CURIAM.

We are asked to decide in this appeal if the title requirement in R.C. 731.31 must be met with strict compliance. For the reasons that follow, we hold that it must and, therefore, that the board of elections has a clear duty to reject the instant noncomplying petition. Moreover, because the board does not argue that Esch has a plain and adequate remedy at law, we further hold that the court of appeals properly granted Esch a writ of mandamus.

R.C. 731.31 provides, in pertinent part:

"Any initiative or referendum petition may be presented in separate parts, but each part of any initiative petition shall contain a full and correct copy of the title and text of the proposed ordinance or other measure, and each part of any referendum petition shall contain the number and a full and correct copy of the title of the ordinance or other measure sought to be referred. * * *." (Emphasis added.)

Conceding that the protested petition bears no title for the proposed ordinance, the board argues that the lack of a title is a technical defect and that strict compliance with this R.C. 731.31 requirement is not necessary. Building on this argument and applying the standard for reviewing determinations of petition sufficiency, see State, ex rel. Beck, v. Casey (1990), 51 Ohio St.3d 79, 80, 554 N.E.2d 1284, 1285, the board further argues that it did not misinterpret or disregard R.C. 731.31 by failing to reject the petition.

We reject these arguments based on the authority cited by the court of appeals. As that court observed, we allowed a writ of mandamus in State, ex rel. Burech, v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153, to compel the rejection of referendum petition papers not in compliance with the R.C. 305.32 requirement that "each petition paper shall contain a full and correct copy of the title and text of the resolution or rule sought to be referred." There, as here, the board of elections argued that these were technical requirements, the absence of which did not invalidate the petition. However, because omitting the title and text interfered with the petition's ability to fairly and substantially present the issue, we held, consistent with general rule for election statutes, that the R.C. 305.32 requirement was mandatory and warranted strict compliance. See, also, Chevalier v. Brown (1985), 17 Ohio St.3d 61, 63, 17 OBR 64, 66, 477 N.E.2d 623, 625; State, ex rel. Evergreen, Co., v. Bd. of Elections (1976), 48 Ohio St.2d 29, 31, 2 O.O.3d 126, 127, 356 N.E.2d 716, 717; State, ex rel. Janasik, v. Sarosy (1967), 12 Ohio St.2d 5, 41 O.O.2d 3, 230 N.E.2d 346.

The board of elections urges us to distinguish Burech because the petition in that case lacked both a text and a title. However, to do so would ignore the fact that a title also provides notice of the proposal to signers of an initiative petition. More so than the text, the title immediately alerts signers to the nature of proposed legislation. As this notice helps prevent the signers from being misled, we follow Burech and hold that the instant petition must contain a title for the proposed ordinance as required by R.C. 731.31.

The board's reliance on Stern v. Bd. of Elections (1968), 14 Ohio St.2d 175, 43 O.O.2d 286, 237 N.E.2d 313, State, ex rel. Maurer, v. Franklin Cty. Bd. of Elections (1987) 33 Ohio St.3d 53, 514 N.E.2d 709, and Waste Technologies Industries v. Columbiana Cty. Bd. of Elections (Nov. 1, 1988), Columbiana App. No. 87-C-54, unreported, 1988 WL 117995, does not persuade us to hold otherwise. The court of appeals properly distinguished Stern and Maurer because the statutes in those cases expressly allowed substantial compliance, and R.C. 731.31 does not. Moreover, although the court in Waste Technologies held that legislation proposed on an initiative petition, if only six lines in length, could substantially comply with R.C. 731.31, that court did not consider our decision in Burech.

A writ of mandamus may issue when the relator has a clear legal right to the relief prayed for, r...