State ex rel. Evans v. Blackwell

• Decision Date: 23 August 2006
• Docket Number: No. 2006-0878.,2006-0878.
• Citation: 2006 Ohio 4334,111 Ohio St.3d 1,854 N.E.2d 1025
• Parties: The STATE ex rel. EVANS, Appellant, v. BLACKWELL, Secy. of State, et al., Appellees.
• Court: Ohio Supreme Court

Page 1025

854 N.E.2d 1025

111 Ohio St.3d 1

2006-Ohio-4334

The STATE ex rel. EVANS, Appellant, v. BLACKWELL, Secy. of State, et al., Appellees.

No. 2006-0878.

Supreme Court of Ohio.

Submitted August 8, 2006.

Decided August 23, 2006.

COPYRIGHT MATERIAL OMITTED

Bricker & Eckler, L.L.P., Quintin F. Lindsmith, Anne Marie Sferra, and Maria J. Armstrong, Columbus, for appellant.

Chester, Willcox & Saxbe, L.L.P., Donald C. Brey, Elizabeth J. Watters, and Deborah A. Scott, Columbus, for appellee Secretary of State J. Kenneth Blackwell.

McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, Columbus, for appellees Donald McClure, Susan Jagers, Tracy Sabetta, and SmokeFreeOhio.

Jim Petro, Attorney General, Sharon A. Jennings, Senior Deputy Attorney General, and Holly J. Hunt, Assistant Attorney General, for appellees Laura Clemens, Clerk of the Ohio House of Representatives, and David Battocletti, Clerk of the Ohio Senate.

PER CURIAM.

{¶ 1} This is an appeal from a judgment denying writs of prohibition and mandamus. Appellant, Jacob Evans, an Ohio taxpayer and elector, seeks the following: to prevent the Secretary of State of Ohio from exercising quasi-judicial authority by circumventing protest proceedings challenging a statewide initiative petition before these proceedings have been adjudicated in common pleas court and to prevent the Clerks of the Ohio House of Representatives and the Ohio Senate from maintaining the Secretary of State's transmittal of the petition on their journals. Evans also seeks to have that transmittal declared void. We affirm.

Initiative Petition, Verification, Protests, and Transmittal

{¶ 2} Appellees 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. SmokeFreeOhio, a coalition of nonprofit organizations, drafted the proposed law.

{¶ 3} On November 17, 2005, the committee filed the initiative petition with appellee 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 respective boards of elections to determine their validity. The secretary also enclosed Directive 2005-33, which tells the elections boards how to determine the validity of the part-petitions and the signatures contained therein. The boards of elections reviewed the part-petitions and then submitted their respective reports to the secretary.

{¶ 4} Beginning on December 21, 2005, Evans filed protests challenging the sufficiency of the findings of several boards of elections. As of March 2006, Evans had filed protests in 34 counties, and to facilitate adjudication, 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} Between December 23 and the morning of December 28, 2005, the Secretary of State received copies of protests against the state initiative that had been filed in seven of the 34 counties and had also received unverified reports that two other counties had received protests. The secretary determined that even if all of the signatures verified in nine counties were invalid, the valid signatures would still exceed the number required for the secretary to transmit the petition to the General Assembly pursuant to Section 1b, Article II of the Ohio Constitution.

{¶ 6} On December 28, 2005, 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 appellees Laura Clemens, the Clerk of the Ohio House of Representatives, and David Battocletti, the Clerk of the Ohio Senate, that the petition met the requirements of Sections 1b and 1g, Article II of the Ohio Constitution and transmitted the full text and summary of the proposed law to the clerks for the General Assembly's consideration at its 2006 session.

{¶ 7} 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.

Court of Appeals Case

{¶ 8} 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 against the secretary and the clerks "in an election case." Evans claimed that by not waiting to transmit the proposed law to the General Assembly until receiving reports of the boards of elections after the common pleas court proceedings on Evans's protests, the secretary violated Section 1b, Article II of the Ohio Constitution. Furthermore, Evans alleges that the secretary, pursuant to R.C. 3519.16, usurped the role of the common pleas courts when he declared that the required number of valid signatures was presented.

{¶ 9} Evans requested a writ of prohibition or, in the alternative, a writ of mandamus to (1) "enjoin the Respondent Clerks from maintaining on their respective journals of the Ohio House of Representatives and the Ohio Senate entries of receipt of transmittal of the Proposed Law from the Secretary, so that such transmittal is treated as never having been received," (2) "correct the Secretary's jurisdictionally unauthorized actions by declaring null and void the Secretary's report to the committee of December 27, 2005 [sic], and his transmittal of the Proposed Law to the General Assembly on December 28, 2005," and (3) "enjoin the [Secretary] from exercising quasi judicial authority in the form of effectively determining the results of pending protest proceedings before they have been adjudicated."

{¶ 10} The court of appeals appointed a magistrate in the case, and the magistrate granted the petition of the committee and members McClure, Jagers, and Sabetta to intervene as respondents. On March 16, 2006, the magistrate issued a decision recommending that the court of appeals deny Evans's request for writs of prohibition and mandamus. The magistrate determined that the secretary was not prohibited from certifying the proposed law to the General Assembly before the R.C. 3519.16 protest procedures had been exhausted and reports following the protest actions had been returned to the secretary. Evans submitted timely objections to the magistrate's decision, and the appellees filed memoranda in opposition to the objections.

{¶ 11} On April 27, 2006, the court of appeals issued a decision overruling Evans's objections and denying the writs, albeit for reasons different from those discussed by the magistrate. The court of appeals held that Evans was not entitled to a writ of prohibition, because neither the secretary nor the clerks were exercising quasi-judicial authority in transmitting the petition to the General Assembly or accepting the transmitted petition. The court of appeals further held that Evans was not entitled to a writ of mandamus, because he did not object to the magistrate's recommended denial of his mandamus claim. On May 3, 2006, Evans appealed.

Proceedings After the May 3, 2006 Appeal

{¶ 12} On May 4, 2006, Judge David E. Cain of the Franklin County Court of Common Pleas issued a decision in a case consolidating protests that Evans had filed in 34 different counties against the statewide smoke-free initiative. Judge Cain sustained Evans's protests 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. Judge Cain 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. On May 25, 2006, Judge Cain issued an entry listing the 27 part-petitions invalidated by his May 4, 2006 decision. On May 31, Judge Cain entered judgment upon his decisions on Evans's protests.

{¶ 13} That judgment has been appealed to the Court of Appeals for Franklin County, which denied Evans's motion to dismiss the appeal for lack of jurisdiction. In re Protest of Evans, Franklin App. Nos. 06AP-539, 06AP-540, 06AP-541, 06AP-542, 06AP-543, 06AP-544, 06AP-545, 06AP-546, 06AP-547, and 06AP-548, 2006-Ohio-3453, 2006 WL 1825177.

{¶ 14} In addition, according to Evans, following the Secretary of State's transmittal of the full text and summary of the proposed statewide initiative that was received by the General Assembly on January 3, 2006, the four-month legislative session ended without the General Assembly taking any action on it.

May 8, 2006 Court of Appeals' Judgment

{¶ 15} On May 8, 2006, the court of appeals entered a judgment reflecting its April 27, 2006 decision and denied the writs of prohibition and mandamus. Evans filed an amended notice of appeal from that judgment. This appeal was fully briefed on July 31, 2006.

{¶ 16} This cause is now before us upon Evans's appeal as of right from the court of appeals' judgment denying the requested extraordinary relief in prohibition and mandamus. S.Ct.Prac.R. II(1)(A).

Mandamus

{¶ 17} In his complaint, Evans included an alternate claim for a writ of mandamus. Evans does not contest the court of appeals' denial of his mandamus claim in this appeal.

{¶ 18} Moreover, even if Evans did challenge the denial of the writ, he waived any error by failing to object to that portion of the magistrate's decision recommending denial of the writ. See State ex rel. Schmidt v. School Emp. Retirement Sys., 100 Ohio St.3d 317, 2003-Ohio-6086, 798 N.E.2d 1088, ¶ 6.

{¶ 19} Finally, Evans seeks relief in the nature of a...