State ex rel. Harris v. Rubino

• Court: Ohio Supreme Court
• Citation: State ex rel. Harris v. Rubino, 2018 OHIO 3609, 155 Ohio St.3d 123, 119 N.E.3d 1238 (Ohio 2018)
• Decision Date: 07 September 2018
• Docket Number: No. 2018-1129,2018-1129
• Parties: The STATE EX REL. HARRIS et al. v. RUBINO, Fin. Dir., et al.

155 Ohio St.3d 123

119 N.E.3d 1238

2018 Ohio 3609

The STATE EX REL. HARRIS et al.

v.RUBINO, Fin. Dir., et al.

No. 2018-1129

Supreme Court of Ohio.

Submitted August 30, 2018

Decided September 7, 2018

I. INTRODUCTION

{¶ 1} This expedited elections case involves an initiative petition proposing an ordinance that would amend the city of Solon's zoning map to create the Kerem Lake Mixed-Use District. Relators, Mark A. Harris, Richard N. Haig, Jacqueline L. Kogan, Cheryl L. Davis, and Travis Lane Maggard, are the five members of the petition committee. The committee seeks a writ of mandamus (1) ordering respondent Solon Director of Finance Matt Rubino (or in the alternative, respondent Solon city council) to certify the sufficiency and validity of the initiative petition to respondent Cuyahoga County Board of Elections and (2) ordering the board to place the proposed ordinance on the November 6, 2018 ballot. The committee asserts these claims as a taxpayer action under R.C. 733.59 and seeks costs and reasonable attorney fees under R.C. 733.61. With its complaint, the committee filed a motion to establish the amount of security for the costs of the proceeding under R.C. 733.59.

{¶ 2} We grant a writ of mandamus ordering Rubino to certify the sufficiency and validity of the initiative petition to the board of elections for placement on the November 2018 ballot. We also grant the motion to establish the amount of the security for costs, waive the provision requiring relators to pay security for costs, and grant the committee its costs and reasonable attorney fees.

II. FACTS

A. The Petition

{¶ 3} The initiative petition seeks to submit to the voters of Solon a proposed ordinance amending the city's zoning map to create the Kerem Lake Mixed-Use District. The ordinance would change the zoning classification of a 102-acre tract that includes a 20-acre lake. The area is currently zoned for single-family houses on one-acre lots. If created, the mixed-use district would permit development of the property to include single- and multi-family dwellings, a winery, a spa, a boutique hotel, certain retail uses, a senior-living facility, and an underground parking garage.

{¶ 4} On June 29, 2018, prior to circulating the petition, the committee submitted a certified copy of the proposed ordinance to both Rubino and the city council. The committee filed the circulated petition with Rubino on July 12. R.C. 731.28 provides that when a municipal initiative petition is filed with a city auditor,¹ the auditor shall "after ten days, * * * transmit the petition to the board [of elections]," which shall return it to the auditor within ten days after receiving it, along with a statement attesting to the number of electors who signed the petition. The board then submits the petition to the electors "at the next general election occurring subsequent to ninety days after the auditor * * * certifies the sufficiency and validity of the initiative petition to the board of elections." Id.

{¶ 5} Rubino held the petition for ten days in accordance with R.C. 731.28. On July 23, the petition was forwarded to the board of elections to examine the signatures. On July 30, the board certified that the petition contained 870 valid signatures, which the parties agree is more than the number necessary to qualify the petition for the ballot under R.C. 731.28. On July 31, the city retrieved the petition and certification from the board. The deadline to certify the validity and sufficiency of the petition to the board for inclusion on the November 2018 ballot was August 8 at 4 p.m.

{¶ 6} Neither Rubino nor the city council met this deadline. Article XIV of the Solon City Charter provides that an ordinance proposed by initiative petition changing a zoning classification or permitted use "shall not become effective after the passage thereof, until Council submits such ordinance * * * to the electorate at a regularly scheduled election, occurring more than 90 days after the passage of the ordinance * * * and such ordinance * * * is approved by a majority of the electors voting thereon, in this Municipality and in each ward in which the change is applicable to property in the ward."

{¶ 7} Rubino and the city council took the position that under Article XIV of the charter, the city council—not Rubino—had the duty to certify the petition to the board, that it could do so only by passing an ordinance, and that the charter required that the ordinance be read by title at three separate council meetings. The city council prepared an ordinance for this purpose containing "emergency" language. That language, if adopted, would have waived the three-reading requirement and made the ordinance effective immediately on passage. The city council held a regular meeting on August 6, at which the ordinance was read by title for the first time. The council did not adopt the "emergency" language or pass the ordinance.

B. The Taxpayer Demand

{¶ 8} During the city council's July 2 meeting—prior to the committee's filing of the circulated petition—the councilman for the ward that includes the Kerem Lake project stated his desire that the eventual ordinance certifying the validity and sufficiency of the petition to the board be given three readings. On July 20, the committee's counsel sent a taxpayer-demand letter to the city's law director, arguing that three readings of a certification ordinance by the city council were not necessary and that Rubino, or in the alternative, the council, had a duty to certify the validity and sufficiency of the petition to the board by August 8. The committee requested, under R.C. 733.58 and 733.59, that the law director seek a writ of mandamus compelling the city council to certify the petition to the board if the council did not do so at its August 6 regular meeting. On July 30, the law director rejected this demand. The August 8 deadline passed with no action by the law director. On August 9, the committee filed this mandamus action.

III. ANALYSIS

{¶ 9} To resolve this case, we must determine whether R.C. 731.28 or Article XIV of the Solon City Charter governs the procedure for certifying the initiative petition to the board of elections for placement on the ballot. The committee argues that R.C. 731.28 applies because the charter provision does not provide a procedure under which the city council must certify the petition by ordinance and because the charter provision violates the Ohio Constitution's reservation of the right of initiative to the people of each municipality in Article II, Section 1f. In the alternative, the committee argues that if the charter does apply, the city council cannot delay the certification of the initiative petition by insisting on passing an ordinance after three readings at three separate meetings; instead, it must either pass an emergency ordinance or certify the petition by resolution or motion.

{¶ 10} We conclude that the charter provision does not apply and that R.C. 731.28 imposed a duty on Rubino to certify the initiative petition to the board. Accordingly, we do not reach the remaining substantive arguments regarding the constitutionality of the charter and the city council's duties under it.

A. Mandamus Standard

{¶ 11} To be entitled to a writ of mandamus, the committee must establish a clear legal right to the requested relief, a clear legal duty on the part of a respondent to grant such relief, and the lack of an adequate remedy in the ordinary course of the law. See State ex rel. Commt. for Charter Amendment Petition v. Maple Hts. , 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 17. Mandamus is appropriate to correct a public official's or public body's abuse of discretion. State ex rel. N. Main St. Coalition v. Webb , 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 27.

B. Does the Charter Clearly and Expressly Conflict with R.C. 731.28 ?

{¶ 12} The key question in determining the legal rights and duties of the parties in this case is whether R.C. 731.28 or Article XIV of the city charter provides the applicable procedure for certifying the sufficiency and validity of the initiative petition to the board of elections. The committee argues that the official performing the role of a city auditor must certify the petition to the board under R.C. 731.28. The city argues that the charter applies and that it requires city council to pass an ordinance certifying the petition to the board. To resolve this question, we must determine whether the charter clearly and expressly conflicts with the statute. As explained below, we find that it does not conflict and that the statute therefore applies.

1. Applicable Law

{¶ 13} Article II, Section 1f of the Ohio Constitution provides, "The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law." R.C. 731.28 sets forth the manner in which municipal initiative petitions are to be submitted, verified, and certified to the board of elections for placement on the ballot. It states:

Ordinances and other measures providing for the exercise of any powers of government granted by the constitution or delegated to any municipal corporation by the general assembly may be proposed by initiative petition. Such initiative petition must contain the signatures of not less than ten per cent of the number of electors who voted for governor at the most recent general election for the office of governor in the municipal corporation.

When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days , transmit a certified copy of the text of the proposed ordinance or measure to the board of elections. The auditor or clerk shall transmit the petition to the board

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