State ex rel. Gil-Llamas v. Hardin

• Decision Date: 29 April 2021
• Docket Number: No. 2020-1466,2020-1466
• Citation: 164 Ohio St.3d 364,172 N.E.3d 998
• Court: Ohio Supreme Court
• Parties: The STATE EX REL. GIL-LLAMAS et al. v. HARDIN, President, et al.

164 Ohio St.3d 364

172 N.E.3d 998

The STATE EX REL. GIL-LLAMAS et al.

v.HARDIN, President, et al.

No. 2020-1466

Supreme Court of Ohio.

Submitted March 30, 2021

Decided April 29, 2021

Fitrakis & Gadell-Newton, L.L.C., Robert J. Fitrakis, and Constance A. Gadell-Newton, for relators.

Zach Klein, Columbus City Attorney, and Richard N. Coglianese and Rebecca E. Wilson, Assistant City Attorneys, for respondents.

Fischer, J. {¶ 1} Relators, Irene Gil-Llamas, Christina L. Gonzaga, Tyrone Spence, Udell Hollins, and ProEnergy Ohio, L.L.C., seek a writ of mandamus to compel respondents, the members of the Columbus City Council—Columbus City Council President Shannon G. Hardin, President Pro Tempore Elizabeth Brown, and council members Rob Dorans, Mitchell J. Brown, Shayla Favor, Emmanuel V. Remy, and Priscilla R. Tyson (collectively, "the council")—to submit to city of Columbus electors a proposed municipal-ordinance initiative on the May 4, 2021 primary-election ballot. The council declined to submit the initiative to the electors because it found relators’ initiative petition deficient in form.

{¶ 2} We hold that relators have demonstrated by clear and convincing evidence that the council abused its discretion in finding relators’ initiative petition insufficient. Although relators are not entitled to the full relief that they seek in mandamus—a writ ordering the council to place the proposed ordinance on the May 4, 2021 primary-election ballot—we hold that relators are entitled to a limited writ of mandamus ordering the council to find the petition sufficient and to proceed with the process for an initiated ordinance under Columbus City Charter Section 43-1 et seq.

I. BACKGROUND

A. Overview of the Initiative Process Under the Columbus City Charter

{¶ 3} Under the home-rule powers granted to municipalities by the Ohio Constitution, a municipality's charter may contain provisions that govern the initiative and referendum process for local ordinances. State ex rel. Harris v. Rubino , 155 Ohio St.3d 123, 2018-Ohio-3609, 119 N.E.3d 1238, ¶ 15-16 ; see generally Ohio Constitution, Article XVIII, Sections 3 and 7. The Columbus City Charter does so. See Charter Sections 42 through 42-15 and 43 through 43-4.

{¶ 4} When an initiative petition proposing a Columbus ordinance is filed with the city, the city attorney must advise the city council on the legal sufficiency of the petition. Id. at Section 42-9. Further, the city clerk must forward the petition to the board of elections and the board must determine the number of valid signatures on the petition. Id. Upon receipt of a report regarding the number of valid signatures on the petition, the council must determine the sufficiency of the petition. Id. at Section 43-1. If the council finds the petition sufficient, it must vote within 30 days to either adopt the proposed ordinance or submit it to a vote of the city's electors. Id.

B. Relators’ Proposed Ordinance

{¶ 5} Gil-Llamas, Gonzaga, Spence, and Hollins are members of a committee formed by ProEnergy Ohio, L.L.C., whose purpose is to gather signatures for an initiative petition proposing a Columbus ordinance and to support the ordinance's passage. The proposed ordinance would require the city to establish four separate funds totaling $87 million, including (1) a $10 million "Energy Conservation and Energy Efficiency Fund," (2) a $10 million "Clean Energy Education and Training Fund," (3) a $10 million "Minority Business Enterprise Clean Energy Development Fund," and (4) a $57 million "Columbus Clean Energy Partnership Fund."

{¶ 6} On October 16, 2020, relators filed their initiative petition with the city clerk under Columbus City Charter Section 42-7. As required by Charter Section 42-9, the city clerk forwarded a copy of the petition to the city attorney and the Franklin County Board of Elections. The board certified the petition as containing a sufficient number of valid signatures for placement on the ballot. The city attorney, however, advised the council that the petition was deficient under Charter Section 42-2(e), because it did not include a title that sufficiently described the content of the proposed ordinance. Consistent with the city attorney's advisement, the council found that relators’ initiative petition failed to meet the mandatory requirements established in the Columbus City Charter and passed an ordinance stating that relators’ initiative would not be submitted to the Columbus electors.

{¶ 7} Relators commenced this action on December 4, 2020, seeking a writ of mandamus to compel the council to submit the proposed ordinance to the electors on the May 4, 2021 primary-election ballot. This court denied the council's motion to dismiss, granted an alternative writ, and set a schedule for the submission of evidence and merit briefs. 161 Ohio St.3d 1424, 2021-Ohio-320, 162 N.E.3d 803. The parties filed evidence and merit briefs. Relators also filed "supplemental evidence" and "amended evidence" beyond the deadline for the submission of evidence and without leave of court. Relators filed objections to the council's evidence, and the council filed a motion to strike relators’ supplemental evidence. Relators also filed a motion to expedite this matter.

II. EVIDENTIARY ISSUES

{¶ 8} Before we address the merits of this case, we resolve several evidentiary issues that have arisen during the course of this litigation. For the reasons stated below, we overrule relators’ objections to the council's evidence, grant the council's motion to strike relators’ supplemental evidence, and sua sponte strike relators’ amended evidence.

A. Relators’ Objections to the Council's Evidence

{¶ 9} Relators object on relevance grounds to two pieces of evidence submitted by the council: (1) exhibit A-5, which is a copy of an envelope postmarked November 25, 2020, and addressed to Gonzaga at the Columbus address listed on the precirculated copy of relators’ initiative petition, and which is marked "return to sender" and has a forwarding address in Houston, Texas, and (2) exhibit B, which is a certified copy of a Franklin County indictment of "John A. Clark Jr. AKA John Alexander Clarke Jr." for felony election falsification and felony tampering with records. We overrule relators’ objections to that evidence.

{¶ 10} Relators argue that exhibit A-5, the copy of the envelope submitted by the council, is not relevant to whether Gonzaga was a Columbus elector when the initiative petition was circulated for signatures, because the mailing of the envelope occurred after the initiative petition was filed. Relators also argue that exhibit A-5 is "a transparent attempt to accuse the Relators of lying that Ms. Gonzaga was a resident and elector of the City of Columbus," and is inadmissible under Evid.R. 403(A) because its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issues. The council argues that exhibit A-5 is directly relevant to whether Gonzaga was a qualified elector of Columbus.

{¶ 11} Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added.) Evid.R. 401. We agree with the council that the envelope exhibit is relevant in this matter and is thus admissible under Evid.R. 402 (relevant evidence is generally admissible) and that its probative value outweighs any alleged undue prejudice and does not confuse the issues, Evid.R. 403(A). Therefore, we overrule relators’ objections to the admission of the council's exhibit A-5.

{¶ 12} Relators also argue that the council's exhibit B, the certified copy of the indictment, is inadmissible because it is irrelevant and is unduly prejudicial and confuses the issues before this court. The council argues that this evidence is relevant to its argument that the proposed ordinance's title is misleading. It is true that exhibit B has little relevance regarding whether the proposed ordinance's title is misleading or is otherwise invalid under Columbus City Charter Section 42-2(e). But this court considers only relevant, material, and competent evidence. See State v. Bays , 87 Ohio St.3d 15, 28-29, 716 N.E.2d 1126 (1999) (the court is presumed to have considered only relevant, material, and competent evidence; the court is presumed to have been unaffected by allegedly inflammatory evidence). Therefore, we overrule relators’ objection to the council's exhibit B.

B. The Council's Motion to Strike Relators’ Supplemental Evidence

{¶ 13} On March 2, 2021, relators filed supplemental evidence—an affidavit of relator Gonzaga—to rebut any assertion that Gonzaga was not a qualified elector of Columbus, Ohio. The council moved to strike that evidence as untimely because it was filed after this court's deadline for submitting evidence. Relators oppose the council's motion to strike the evidence, arguing that they are entitled to present rebuttal evidence under this court's decision in Phung v. Waste Mgt. Inc. , 71 Ohio St.3d 408, 410-411, 644 N.E.2d 286 (1994), and that in any event, S.Ct.Prac.R. 3.13 allows them to amend their evidence. Thus, relators argue that their supplemental evidence was timely filed. Relators are wrong.

{¶ 14} This court's decision in Phung is inapposite. In Phung , we held that in the context of a trial , a party has "an unconditional right" to present rebuttal evidence in response to evidence submitted in the opposing party's case-in-chief. Id. at 411, 644 N.E.2d 286. But this is an extraordinary-writ proceeding in which this court ordered the parties to submit "any evidence they intend[ed] to present" by a deadline, 161 Ohio St.3d 1424, 2021-Ohio-320, 162 N.E.3d 803. And relators’ reliance on S.Ct.Prac.R. 3.13(A) is misplaced. Although that rule allows a party to "make corrections or additions to a previously filed document," division (B) of the rule provides that the revised document ...