State ex rel. Espen v. Wood Cnty. Bd. of Elections
| Decision Date | 19 October 2017 |
| Docket Number | No. 2017-1313,2017-1313 |
| Citation | 110 N.E.3d 1222,154 Ohio St.3d 1,2017 Ohio 8223 |
| Parties | The STATE EX REL. ESPEN v. WOOD COUNTY BOARD OF ELECTIONS et al. |
| Court | Ohio Supreme Court |
McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, Columbus, and Ben F.C. Wallace, Cleveland, for relator.
Paul A. Dobson, Wood County Prosecuting Attorney, and Linda F. Holmes and David T. Harold, Assistant Prosecuting Attorneys, for respondent.
Terry J. Lodge, Toledo, for intervening respondents.
Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, Columbus, urging issuance of the writs for amici curiae, Affiliated Construction Trades Ohio Foundation, the Ohio Chamber of Commerce, and the American Petroleum Institute.
{¶ 1} In this expedited election case, relator, David W. Espen, seeks a writ of mandamus and/or a writ of prohibition to compel respondent, the Wood County Board of Elections, to remove a charter amendment petition from the November 2017 ballot. We deny the writs.
Background and procedural motions
{¶ 2} On August 7, 2017, the city of Bowling Green received a petition proposing an amendment to the city charter adding a new Article I, Section 1.05, titled "Community Rights to a Healthy Environment and Livable Climate." On September 6, the Wood County Board of Elections certified the proposed amendment to the November 2017 ballot.
{¶ 3} Espen filed a letter of protest on September 11. The board held a hearing, and on September 19, issued a written decision overruling the protest.
{¶ 4} Espen filed the present expedited election complaint the same day. The board of elections filed an answer on September 25, 2017. On October 2, the board filed a motion for leave to file an amended answer, after noticing that its original answer had inadvertently admitted the factual averments in paragraph 21 of the complaint, which the board wished to deny. We grant that motion.
{¶ 5} The members of the Committee of Petitioners for the Bowling Green Charter Amendment, Lisa Kochheiser, Jennifer Karches, Joseph R. DeMare, and Bradley M. Holmes ("the committee"), filed an unopposed motion for leave to intervene, a proposed answer, and an amicus brief in support of the board of elections. We construe Civ.R. 24 liberally to permit intervention. State ex rel. Merrill v. Ohio Dept. of Natural Resources , 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Pursuant to Civ.R. 24(B)(2), we grant the motion to intervene and accept the amicus brief as the committee’s brief on the merits.
Legal analysis
{¶ 6} Espen raised two issues in his protest before the board of elections. First, he challenged the validity of the petition, alleging that it exceeded the municipal powers of self-government set forth in the Ohio Constitution. And second, he alleged that the petition had insufficient valid signatures to qualify for the ballot because five signatures the board accepted should have been invalidated. After hearing testimony and reviewing documents, the board concluded that the five contested signatures were valid and that Espen had "presented no testimonial evidence to support his contention that the proposed Bowling Green Charter Amendment exceeded the scope of municipal initiative power."
{¶ 7} When reviewing a decision of a county board of elections, the standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.
{¶ 8} Ohio Constitution, Article XVIII, Section 3, provides that municipalities "have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." This authority is also extended to the people acting in their sovereign capacity: "The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action * * *." Ohio Constitution, Article II, Section 1f.
{¶ 9} A municipal ordinance created under the power of local self-government "must relate ‘solely to the government and administration of the internal affairs of the municipality.’ " In re Complaint of Reynoldsburg v. Columbus S. Power Co. , 134 Ohio St.3d 29, 2012-Ohio-5270, 979 N.E.2d 1229, ¶ 25, quoting Beachwood v. Cuyahoga Cty. Bd. of Elections , 167 Ohio St. 369, 148 N.E.2d 921 (1958), paragraph one of the syllabus. The limitations on municipal lawmaking in Article XVIII, Section 3 apply with equal force to municipal charter provisions. Ohio Constitution, Article XVIII, Section 7.
{¶ 10} Espen contended that the proposed charter amendment violates Article XVIII, Section 3 in at least four ways. Proposed Article I, Section 1.05(a) of the charter provides:
The people of the City of Bowling Green, and the natural communities and ecosystems in Bowling Green, possess the right to a healthy environment and livable climate. That right shall include the right to be free from new infrastructure for fossil fuel transportation within the City of Bowling Green or on property owned by the City of Bowling Green, except for infrastructure to transport fossil fuels to end-users within Wood County.
{¶ 11} Espen challenges this provision as a regulation of commerce that occurs outside Bowling Green’s municipal boundaries and therefore beyond the city’s authority to enact. Subpart (b) of the charter amendment provides: "City of Bowling Green law enforcement, and cooperating agencies acting within the jurisdiction of the City of Bowling Green, shall have no lawful authority to surveil, detain, arrest, or otherwise impede persons enforcing these rights."
{¶ 12} Espen further challenges this clause as a regulation of county, state, and federal law-enforcement officials, which Bowling Green is without authority to enact.1 And he opposes other sections of the charter amendment on the grounds that they purport to regulate the jurisdiction of the courts.
{¶ 13} However, the question before the court is not whether the proposed amendment would be constitutional if enacted, but whether the board of elections has the authority to make that determination. And in answer to that question, we have held:
The boards of elections * * * do not have authority to sit as arbiters of the legality or constitutionality of a ballot measure’s substantive terms. An unconstitutional amendment may be a proper item for referendum or initiative. Such an amendment becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction.
(Emphasis sic.)
State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 11.
{¶ 14} Our jurisprudence limiting the authority of board of elections to review the constitutionality of proposed measures rests squarely on separation-of-powers considerations. Youngstown at ¶ 11 (). The separation of powers is "implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government." S. Euclid v. Jemison , 28 Ohio St.3d 157, 159, 503 N.E.2d 136 (1986).
This attempt by the General Assembly to grant review power to the election boards violates the Constitution because " ‘the administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.’ " State v. Bodyke , 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 45, quoting State ex rel. Johnston v. Taulbee , 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the syllabus. To the extent that R.C. 3501.38(M)(1)(a) authorizes and requires boards of elections to make substantive, preenactment legal evaluations, it violates the separation-of-powers doctrine and is unconstitutional.2
{¶ 16} We agree with the board of elections that it had no authority to invalidate the charter petition based on a substantive evaluation of its legality, and we affirm the rejection of Espen’s first protest argument.
{¶ 17} Alternatively, Espen claimed that the petition failed to qualify for the ballot because in certifying the amendment proposal, the board verified five invalid signatures. To qualify for the ballot, the petition needed 714 valid signatures. The board of elections verified 715 signatures. Thus, if successful, Espen’s protest would have left the petition with too few signatures.
{¶ 18} The challenge was based on R.C. 3501.38(C), which requires each signer of a part-petition to indicate the date of signing and the location of the signer’s voting residence. "The voting address given on the petition shall be the address appearing in...
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