State ex rel. Fite v. Aeh
Decision Date | 11 September 1997 |
Docket Number | No. 96-2498,96-2498 |
Parties | The STATE ex rel. FITE et al. v. AEH, Clerk. |
Court | Ohio Supreme Court |
McTigue & Brooks, and Donald J. McTigue, Columbus, for relators.
David W. Kuhn, Portsmouth City Solicitor, for respondent.
Aeh moves to dismiss the mandamus claims relating to Second Ward Council Member Greg Bauer and Sixth Ward Council Member Orin Campbell. Bauer and Campbell have resigned their council positions. These resignations moot relators' claims concerning their petitions requesting Bauer's and Campbell's removal from city council. The issues raised by these claims are not capable of repetition, yet evading review. State ex rel. Fenley v. Kyger (1995), 72 Ohio St.3d 164, 165, 648 N.E.2d 493, 494. Relators also do not oppose Aeh's dismissal motions.
Therefore, we grant Aeh's motions and dismiss the claims concerning the petitions requesting removal of Bauer and Campbell.
Relators assert in their sole proposition of law that Aeh has a clear legal duty to comply with R.C. 3501.38. Aeh counters that the provisions set forth in the Portsmouth Charter governing recall petitions are exclusive and controlling.
Sections 150, 151, and 152 of the Portsmouth Charter provide:
R.C. 3501.38 provides that "[a]ll * * * petitions presented to or filed with the secretary of state or a board of elections or with any other public office * * * for the holding of an election on any issue shall * * * be governed by the following rules:
R.C. 3501.38(H) and (I) prohibit the removal of signatures from petitions after they are filed in any public office. See, e.g., State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 174-175, 602 N.E.2d 615, 621; State ex rel. Green v. Casey (1990), 51 Ohio St.3d 83, 85, 554 N.E.2d 1288, 1291; State ex rel. Jeffries v. Ryan (1969), 21 Ohio App.2d 241, 253, 50 O.O.2d 403, 410, 256 N.E.2d 716, 724.
Contrary to Aeh's contentions, R.C. 3501.38(H) and (I) are applicable to the recall petitions filed with her. First, R.C. 3501.38 is incorporated by reference in Sections 143 and 165 of the Portsmouth Charter. See Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 37-38, 671 N.E.2d 1, 3-4, citing State ex rel. Bogart v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 554, 555, 621 N.E.2d 389, 390; Section 143, Portsmouth Charter ("All elections provided for by this Charter * * * shall be conducted by the election authorities prescribed by general law; and the provisions of the general election laws of the State shall apply to all such elections except as otherwise provided by this Charter."); Section 165, Portsmouth Charter ("All general laws of the State applicable to municipal corporations * * * and which are not in conflict with the provisions of this Charter * * * shall be applicable to this City * * *."). Second, the charter provisions relating to recall petitions are silent on the issue of withdrawal of signatures after filing. Therefore, there is no conflict with R.C. 3501.38(H) and (I), and the statutory provisions control. See, e.g., State ex rel. Citizens for a Better Beachwood v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 167, 169-170, 580 N.E.2d 1063, 1065 ( ). Third, application of R.C. 3501.38(H) and (I) to recall petitions in Portsmouth gives effect to Sections 143 and 165 of the charter and harmonizes the charter with the pertinent statutory provisions. State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 142, 630 N.E.2d 708, 711, quoting 1 Gotherman & Babbit, Ohio Municipal Law (2 Ed.1992) 55, Section T 4.39 ( ); State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 73, 647 N.E.2d 769, 773.
Aeh nevertheless contends that she was entitled to remove signatures from the recall petitions for various reasons. Aeh initially asserts she was entitled to remove the signatures based on the petition amendment procedure set forth in Section 29 of the Portsmouth Charter. Aeh claimed that she treated the signature withdrawal petitions as "amendments" to the original recall petitions. But the amendment procedure was inapplicable to...
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