State ex rel. Hackworth v. Hughes
| Decision Date | 04 October 2002 |
| Docket Number | No. 2002-1547.,2002-1547. |
| Citation | 97 Ohio St.3d 110,776 N.E.2d 1050,2002 Ohio 5334 |
| Parties | The STATE ex rel. HACKWORTH v. HUGHES, Mayor, et al. |
| Court | Ohio Supreme Court |
Susan J. Kyte, Columbus, and Sheryl D. Warner, Canal Winchester, for relator.
Robert E. Mapes, Pickerington Law Director, and Donald J. McTigue, for respondents Pickerington Mayor Randall L. Hughes, Pickerington City Council, and Pickerington City Council Members.
Betty D. Montgomery, Attorney General, and Arthur J. Marziale Jr., Assistant Attorney General, for respondent Secretary of State.
David L. Landefeld, Fairfield County Prosecuting Attorney, and Roy E. Hart, Assistant Prosecuting Attorney, for respondent Fairfield County Board of Elections.
{¶ 1} Relator, Ted Lee Hackworth, a registered elector of Pickerington, Ohio, and other proponents of a proposed amendment to the Pickerington Charter, circulated a petition seeking to amend Section 2.06 of the Pickerington Charter. Each part-petition contained the following language:
{¶ 2} "WHEREAS, it is our desire to amend section 2.06 of the Charter of the City of Pickerington to make provisions for certain ordinances and resolutions;
{¶ 3} "WHEREAS; it is our desire that zoning ordinances and resolutions (1) always have the three full readings, (2) be passed or adopted by no less than ¾'s of the members of the City Council and (3) not be passed as emergency legislation.
{¶ 4} "NOW THEREFORE, section 2.06 of the Charter of the City of Pickerington be amended to read as follows:
{¶ 5} "SECTION 2.06 ORDINANCES AND RESOLUTIONS
{¶ 6} "* * *
{¶ 7} "NOTWITHSTANDING ANY OTHER SECTIONS OF THIS CHARTER, OR ANY PROVISION IN THIS SECTION 2.06, EACH ZONING ORDINANCE OR RESOLUTION SHALL BE READ ON THREE SEPARATE MEETING DAYS, AND THE REQUIREMENT SHALL NOT BE DISPENSED WITH BY A VOTE OF THE MEMBERS OF COUNCIL.
{¶ 8} "The vote on the question of passage of each resolution, ordinance, or motion, shall be taken by `yea' or `nay' and the vote entered in [sic, in the] minutes. No measures shall be passed without a concurrence of a majority of the members of Council, EXCEPT A VOTE ON THE QUESTION OF PASSAGE OF ANY ZONING RESOLUTION OR ORDINANCE, WHICH SHALL NOT BE PASSED WITHOUT A CONCURRENCE OF AT LEAST THREE-FOURTHS (3/4'S) OF THE MEMBERS OF COUNCIL.
{¶ 9} (Capitalization sic.)
{¶ 10} This language was followed by "SEE ATTACHMENT A FOR THE ENTIRE SECTION 2.06." Attachment A to the petition included the foregoing language, as well as this language that followed it, which was not capitalized:
{¶ 11} "Each ordinance or resolution shall be authenticated by the clerk. The failure to sign shall not invalidate an otherwise properly enacted resolution or ordinance.
{¶ 12} "Public notice, as required by laws of the State of Ohio or by this Charter, shall be given legislation once in a newspaper determined by Council to be of general circulation within the Municipality, and this publication shall contain a statement that a copy of the legislation is available for inspection at the office of the manager.
{¶ 13}
{¶ 14} According to Hackworth, the six changes to Section 2.06 of the Pickerington Charter proposed by the charter amendment are (1) to require three readings by respondent Pickerington City Council of any zoning ordinance or resolution, (2) to increase the number and percentage of votes required for the passage of zoning ordinances, (3) to increase the number and percentage of votes required for the passage of emergency ordinances and resolutions, (4) to eliminate the right and opportunity to enact or pass zoning ordinances and resolutions as emergency legislation, (5) to make the city manager's office the place for public inspection of legislation, and (6) to increase the number of years between mandatory review and update of the charter by city council from five to ten years. Nevertheless, in the petition, only the first, second, and fourth of these changes were set forth in capital letters. And in the petition, only the first, second, and fourth of the changes were specified in the preliminary "whereas" clauses.
{¶ 15} On August 1, 2002, Hackworth filed the petition with the city clerk. The city clerk determined that the petition contained 356 valid signatures, which exceeded the number of signatures required for placement of the charter amendment on the ballot.
{¶ 16} At the August 20, 2002 council meeting, the city clerk notified council that the charter amendment petition contained sufficient valid signatures. The city law director then distributed copies of his handwritten analysis of the petition. He noted that the language of the proposed charter amendment contained typographical errors and was "confusing and misleading." On August 24, 2002, Hackworth responded to the law director's concerns. Hackworth admitted numerous typographical errors in the petition and claimed that any substantive changes to Section 2.06 were intended as part of the proposed charter amendment. Hackworth also noted that he knew of no requirement that charter amendment petitions capitalize all of the proposed amended language.
{¶ 17} On September 3, 2002, the city council considered the petition but did not pass an ordinance to place the charter amendment on the ballot. A motion to adopt the ordinance failed for lack of a second. The law director concluded that although the petition contained sufficient signatures and was filed on the proper form, the capitalization of some of the proposed amendments but not others might constitute a defect.
{¶ 18} On September 6, 2002, Hackworth filed this expedited election action for a writ of mandamus to compel respondents, the city council and its members, the mayor, the board of elections, and Secretary of State J. Kenneth Blackwell, to place the charter amendment on the November 2002 ballot. Hackworth's complaint did not contain an affidavit affirmatively stating that it was based on personal knowledge, as required by S.Ct.Prac.R. X(4)(B). Respondents filed answers, and the Pickerington respondents and the board filed motions for judgment on the pleadings. Hackworth filed a motion for leave to file an amended complaint, and the parties filed evidence and briefs pursuant to the expedited schedule in S.Ct. Prac.R. X(9). Hackworth's reply brief was due on September 26, but he did not file one.
{¶ 19} This cause is now before the court for a consideration of the merits.
{¶ 20} We deny the Pickerington respondents' and the board's motions for judgment on the pleadings. These motions are inappropriate in expedited election proceedings. See State ex rel. Toledo v. Lucas Cty. Bd. of Elections (2002), 95 Ohio St.3d 73, 74, 765 N.E.2d 854. Nevertheless, we will consider their arguments as part of our consideration of the merits.
{¶ 21} Respondents city council, its members, and the mayor seek dismissal of this action or denial of the writ because Hackworth's initial complaint failed to comply with S.Ct.Prac.R. X(4)(B).
{¶ 22} Effective August 1, 2002, S.Ct. Prac.R. X(4)(B) was amended to specify that the affidavit required by this rule must be made on personal knowledge:
{¶ 23} (Emphasis added.) 95 Ohio St.3d CXXXVI.
{¶ 24} This amendment incorporates our construction of the previous version of S.Ct.Prac.R. X(4)(B) to require affidavits based on personal knowledge. See State ex rel. Sekermestrovich v. Akron (2001), 90 Ohio St.3d 536, 538, 740 N.E.2d 252, and cases cited therein. We have routinely dismissed original actions, other than habeas corpus, that were not supported by an affidavit expressly stating that the facts in the complaint were based on the affiant's personal knowledge. See State ex rel. Tobin v. Hoppel, 96 Ohio St.3d 1478, 2002-Ohio-4177, 773 N.E.2d 554; State ex rel. Shemo v. Mayfield Hts. (2001), 92 Ohio St.3d 324, 750 N.E.2d 167. The affidavit attached to Hackworth's complaint, in which one of his attorneys stated that the facts in the complaint were "true and accurate to the best of her knowledge and belief," does...
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