State ex rel. Evans v. Blackwell, 2006-1781.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Per Curiam
• Citation: 2006 Ohio 5439,111 Ohio St.3d 437,857 N.E.2d 88
• Parties: The STATE ex rel. EVANS v. BLACKWELL, Secy. of State.
• Docket Number: No. 2006-1781.,2006-1781.
• Decision Date: 20 October 2006

857 N.E.2d 88

111 Ohio St.3d 437

2006-Ohio-5439

The STATE ex rel. EVANS v. BLACKWELL, Secy. of State.

No. 2006-1781.

Supreme Court of Ohio.

Submitted October 12, 2006.

Decided October 20, 2006.

Bricker & Eckler, L.L.P., Quintin F. Lindsmith, Anne Marie Sferra, and Vladimir P. Belo, for relator.

Langdon & Hartman, L.L.C., David R. Langdon, Curt C. Hartman, and Joshua B. Bolinger, for respondent.

The McTigue Law Group, Donald S. McTigue and Mark A. McGinnis, for intervening respondents.

PER CURIAM.

{¶ 1} This is an expedited election case in which relator seeks a writ of mandamus to compel the Secretary of State to remove a statewide initiative from the November 7, 2006 election ballot. Because we lack jurisdiction over relator's claim for declaratory judgment and prohibitory injunction and relator did not comply with S.Ct. Prac.R. X(4)(B), we dismiss the cause.

Initiative Petition, Verification, Protests, Transmittal, and Supplementary Petition

{¶ 2} Intervening respondents Donald McClure, Susan Jagers, and Tracy Sabetta are members of a committee responsible for a state initiative petition proposing a law called "The Smoke Free Workplace Act." Under the proposed law, smoking and burning tobacco in enclosed areas of public places and in public and private places of employment in Ohio would be generally prohibited. Intervening respondent SmokeFreeOhio, a coalition of nonprofit organizations, drafted the proposed law.

{¶ 3} On November 17, 2005, the committee filed the initiative petition with respondent Ohio Secretary of State J. Kenneth Blackwell. The petition contained over 167,000 signatures from all 88 counties. On December 1, 2005, in accordance with R.C. 3519.15, the Secretary transmitted part-petitions to the county boards of elections to determine their validity. The boards of elections reviewed the part-petitions and then submitted their reports to the Secretary.

{¶ 4} Beginning in December 2005, relator, Jacob Evans, an Ohio taxpayer and elector, filed protests challenging the sufficiency of the findings of several boards of elections. By March 2006, Evans had filed protests in 34 counties, and the Secretary had filed a motion in 31 of the 34 counties to intervene and transfer venue to the Franklin County Court of Common Pleas.

{¶ 5} On December 28, 2005, when some of the protests were pending, the Secretary notified the committee, as required by R.C. 3519.16, that the petition contained 117,026 valid signatures and that this number was sufficient for the petition to be transmitted to the General Assembly. By letter dated December 28, 2005, the Secretary notified the clerks of the Ohio House of Representatives and the Ohio Senate that the petition met the requirements of Sections 1b and 1g, Article II of the Ohio Constitution, and he transmitted the full text and summary of the proposed law to the clerks for the General Assembly's consideration at its 2006 session.

{¶ 6} On January 3, 2006, the General Assembly convened its second regular session, and the clerks journalized the transmittal by the Secretary of the proposed law. After four months elapsed without the General Assembly taking any action on the proposed law, the committee filed a supplementary petition pursuant to Section 1b, Article II of the Ohio Constitution requesting that the initiative be submitted to the electors for their approval or rejection at the November 7, 2006 general election. The Secretary sent the supplementary part-petitions to the elections boards to determine the sufficiency and validity of the signatures. By letter dated September 7, 2006, the Secretary notified the committee that based on the boards' reports, he had certified 114,517 valid signatures in the supplementary petition.

Previous Prohibition and Mandamus Case

{¶ 7} On January 3, 2006, Evans filed a complaint in the Court of Appeals for Franklin County for an emergency writ of prohibition or, in the alternative, for a writ of mandamus to (1) enjoin the clerks of the General Assembly from treating the initiative petition as ever having been transmitted by the Secretary, (2) correct the Secretary's actions by declaring null and void his December 28, 2005 transmittal of the initiative petition to the General Assembly, and (3) enjoin the Secretary from determining the results of pending protest proceedings before they had been adjudicated. Evans claimed that by not waiting to transmit the proposed law to the General Assembly until reports from the boards of elections had been received following the common pleas court proceedings on Evans's protests, the Secretary violated Section 1b, Article II of the Ohio Constitution. Evans also asserted that the Secretary usurped the authority of common pleas courts under R.C. 3519.16 by declaring on December 28, 2005, that the initiative petition contained the required number of signatures.

{¶ 8} On April 27, 2006, the court of appeals issued a decision denying the writs. State ex rel. Evans v. Blackwell, Franklin App. No. 06AP-6, 2006-Ohio-2076, 2006 WL 1102804. On May 8, 2006, the court of appeals entered a judgment reflecting its April 27 decision.

{¶ 9} On appeal, we affirmed the judgment denying the writs. State ex rel. Evans v. Blackwell, 111 Ohio St.3d 1, 2006-Ohio-4334, 854 N.E.2d 1025. We held that Evans "did not establish that the petition contained an insufficient number of signatures on the Section 1b, Article II deadline of `not less than ten days prior to the commencement' of the January 2006 session of the General Assembly." Id. at ¶ 24. We further held that the Secretary did not patently and unambiguously lack jurisdiction to transmit the proposed law to the General Assembly and that Evans had an adequate remedy in the ordinary course of law by an action for a prohibitory injunction in common pleas court to prevent the proposed law from being placed on the November 7, 2006 election ballot. Id. at ¶ 32-38.

Protest Case and Appeal

{¶ 10} Just before the court of appeals entered judgment denying the writs in Evans's prohibition and mandamus case, on May 4, 2006, the Franklin County Court of Common Pleas issued a decision in a case consolidating the protests that Evans had filed in 34 different counties against the statewide smoke-free initiative. The common pleas court sustained Evans's protests in part and invalidated all part-petitions listing the American Cancer Society as the circulators' employer when the circulators were actually employed by an independent contractor or were self-employed. The common pleas court determined that the pertinent part-petitions violated R.C. 3501.38(E)(1) and ordered the parties to submit a complete list of circulators not employed by the American Cancer Society who had falsely listed the society as their employer.

{¶ 11} On May 25, 2006, the common pleas court issued an entry listing the 27 part-petitions invalidated by its May 4 decision. On May 31, the common pleas court entered judgment on its protest decisions. The common pleas court also ordered the boards of elections to revise their reports of valid signatures and reissue them to the Secretary based on the court's determination.

{¶ 12} The court of appeals stayed the common pleas court's judgment pending its resolution of the committee's appeal. On September 11, 2006, the court of appeals affirmed the common pleas court's May 2006 judgment and lifted the stay. In re Protest of Evans Against Initiative Petition Proposing Smoke Free Workplace Act, Franklin App. Nos. 06AP-539 through 06AP-548, 2006-Ohio-4690, 2006 WL 2590613. On October 12, 2006, we declined to accept for review the discretionary appeal by the committee and its members. In re Protest of Evans Against Initiative Petition Proposing Smoke Free Workplace Act, 111 Ohio St.3d 1422, 2006-Ohio-5314, 855 N.E.2d 89.

Actions of the Secretary of State and the Boards of Elections

{¶ 13} On September 8, 2006, the Secretary issued Directive 2006-62 ordering the boards of elections to place the statewide smoke-free initiative on the November 7, 2006 election ballot as Issue 5.

{¶ 14} After the court of appeals affirmed the judgment of the common pleas court in the protest case and lifted its stay relating to the protest case on September 11, the boards of elections filed revised reports concerning the number of valid signatures on the initial petition with the Secretary. On September 19, 2006, after he received the last of the revised reports, Assistant Secretary of State Monty Lobb mailed a letter to the committee members noting that the petition filed on November 17, 2005, contained an insufficient number of signatures for placement on the November 7, 2006 election ballot and that the committee would have to submit an additional 23,750 valid signatures within ten days to ensure placement on that ballot. In the letter, Lobb detailed the procedural history of the initiative petition since November 17, 2005.

{¶ 15} On September 28, 2006, the committee timely filed a second supplementary petition. The Secretary sent the part-petitions to the elections boards, and after receiving reports from most of the boards, he certified that the committee had submitted 25,486 additional valid signatures. On October 5, 2006, the Secretary found that the committee had filed a sufficient number of signatures to permit the placement of the proposed Smoke Free Workplace Act on the November 7, 2006 election ballot.

Expedited Election Case

{¶ 16} On September 22, 2006, Evans filed this expedited election case for a writ of mandamus to compel the Secretary to perform his "ministerial function of (a) striking Issue 5 from the November 2006 ballot, (b) not tabulating any of the votes on Issue 5, (c) directing all of the county boards of elections to remove Issue 5 from the November 2006 ballot, and (d) directing all of the county boards of elections not to tabulate any of the votes on Issue 5." In his complaint, Evans contends that because the committee's initial filing...