State ex rel. Hasselbach v. Sandusky Cnty. Bd. of Elections, 2019-1191
| Decision Date | 18 September 2019 |
| Docket Number | No. 2019-1191,2019-1191 |
| Parties | The STATE EX REL. HASSELBACH et al. v. SANDUSKY COUNTY BOARD OF ELECTIONS et al. |
| Court | Ohio Supreme Court |
Albrechta & Coble, Ltd., John A. Coble, Joseph F. Albrechta, Fremont, and George J. Schrader, for relators.
Timothy Braun, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for respondent.
Mayle, L.L.C., Andrew R. Mayle, and Ronald J. Mayle, Fremont, for intervening respondent.
{¶ 1} In this expedited election case, relators, Dennis Hasselbach and Marilyn Moore, electors of the city of Fremont ("petitioners"), seek a writ of mandamus to compel respondent, the Sandusky County Board of Elections, to place a referendum petition concerning a city zoning ordinance on the November 2019 general election ballot. The board excluded the petition from the ballot after finding that the ordinance was properly passed as an emergency measure and therefore is not subject to referendum. Because the ordinance fails to state an emergency under R.C. 731.30, we conclude that the board's decision was contrary to law and grant the writ.
{¶ 2} On June 6, 2019, the Fremont City Council passed an ordinance that rezoned a parcel from "single-family residential" to "multi-family residential." The parcel is owned by intervening respondent, Fremont Rental, Ltd. Fremont Rental sought the zoning change because it intends to construct apartments on the parcel.
{¶ 3} Petitioners allege that the zoning change was first proposed as a nonemergency measure at a city council meeting in May 2019. A third reading of the proposed ordinance occurred at council's June 6 meeting. See R.C. 731.17(A)(2) (). But at the June 6 meeting, the proposal was modified to include the following language designating it as an emergency measure:
The immediate operation of the provisions of this ordinance is necessary for the immediate preservation of the public peace, health, safety and welfare of the citizens of the City of Fremont. Said emergency being the immediate undertaking of the project to avoid an increase in project cost.
With this change, the ordinance passed by a four-to-two vote.
{¶ 4} Fremont's city council ordinarily has seven members. See R.C. 731.01(A). There were only six council members at the June 6 meeting because one member had died on June 3.
{¶ 5} On June 28, a committee of Fremont electors (including petitioners) filed a referendum petition to have the zoning ordinance placed on the November ballot for approval or rejection by the voters. On July 19, Fremont Rental and one of its employees filed a protest against the petition with the board. On August 15, after a hearing, the board upheld the protest, excluding the referendum from the ballot, by a three-to-one vote. The board concluded that the ordinance was properly passed as an emergency measure and therefore is not subject to referendum.
{¶ 6} Petitioners filed this mandamus action against the board on August 26. Fremont Rental moved to intervene, and we granted the motion on September 3. Petitioners and Fremont Rental submitted evidence, and the matter is fully briefed.
{¶ 7} Meanwhile, on July 23, Hasselbach and others filed a complaint in the Sandusky County Court of Common Pleas seeking declaratory judgment and injunctive relief against the city of Fremont. The plaintiffs in that case allege that the zoning ordinance is "invalid and void" for four reasons. Two of those reasons are similar to petitioners' arguments in this case: that the ordinance was not passed by a two-thirds vote of all the members elected to the legislative authority, as required by R.C. 731.30, and that it did not identify a legitimate emergency. The common-pleas action is essentially stayed by stipulation of the parties until after the November election.
{¶ 8} Fremont Rental first argues that we lack jurisdiction under the jurisdictional-priority rule because a similar action challenging the validity of the zoning ordinance is pending in the court of common pleas. Under the jurisdictional-priority rule, "[a]s between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties."
State ex rel. Phillips v. Polcar , 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus. The rule "exists to promote judicial economy and avoid inconsistent results." State ex rel. Consortium for Economic & Community Dev. for Hough Ward 7 v. Russo , 151 Ohio St.3d 129, 2017-Ohio-8133, 86 N.E.3d 327, ¶ 10.
{¶ 9} The jurisdictional-priority rule generally requires "the claims and parties [to] be the same in both cases, so ‘[i]f the second case is not for the same cause of action, nor between the same parties, the former suit will not prevent the latter.’ " State ex rel. Dunlap v. Sarko , 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 10, quoting State ex rel. Judson v. Spahr , 33 Ohio St.3d 111, 113, 515 N.E.2d 911 (1987). As petitioners point out, the common-pleas action and this action involve different causes of action and different parties. While the plaintiffs in the common-pleas action sued the city of Fremont seeking a declaration that the zoning ordinance is invalid because it was not properly enacted, petitioners here sued the board seeking mandamus relief, assuming that the ordinance is valid yet subject to referendum.
{¶ 10} Fremont Rental nevertheless contends that an exception to the general rule applies here because, it says, the two cases involve the same issue. To be sure, we have "recognized that the jurisdictional-priority rule can apply even when the causes of action and relief requested are not exactly the same, as long as the actions present part of the same ‘whole issue.’ " Dunlap at ¶ 11, quoting State ex rel. Otten v. Henderson , 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 29, and State ex rel. Sellers v. Gerken , 72 Ohio St.3d 115, 117, 647 N.E.2d 807 (1995). But this case is unlike Dunlap , which involved a relator who had filed very similar public-records mandamus actions in multiple courts "against essentially the same parties." Dunlap at ¶ 12. In contrast, the two actions filed by Hasselbach seek different relief and involve different theories, different causes of action, and a different defendant/respondent.
{¶ 11} The cases on which Dunlap relied do not support Fremont Rental's argument either. Otten involved two actions that not only included "the same parties and same causes of action" but also "present[ed] the same issue." Otten at ¶ 29. And in Sellers , we declined to apply the exception to the general rule, because "it [was] not clear * * * that the two suits comprise[d] part of the same ‘whole issue.’ " Sellers at 117, 647 N.E.2d 807. Fremont Rental thus has not shown that the common-pleas action and this action overlap to such a degree that they fit within the exception to the general rule. We therefore reject Fremont Rental's argument that we lack jurisdiction because of the jurisdictional-priority rule.
{¶ 12} Although the parties do not address it, the common-pleas action is relevant to another issue in this case—whether petitioners have an adequate remedy at law. See State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6 (). We recently held that under certain circumstances, a party may have an adequate remedy at law in an election matter when it first pursues an action in a common pleas court. State ex rel. Fleming v. Fox , ––– Ohio St.3d ––––, 2019-Ohio-3555, ––– N.E.3d ––––, ¶ 8.
{¶ 13} But this case is unlike Fleming , which involved a special statutory proceeding under R.C. 307.94. That statute does not apply here, and the remedy Hasselbach is pursuing in the common pleas court differs from the writ petitioners seek from this court. Although the practical goal of both cases may be to stop Fremont Rental's project from moving forward, the object here is to have the ordinance presented to Fremont electors for approval or disapproval. The common-pleas action, in which the Sandusky County Board of Elections is not a party, is not adequate to provide that remedy. Thus, we conclude that petitioners lack an adequate remedy in the ordinary course of the law. See State ex rel. Greene v. Montgomery Cty. Bd. of Elections , 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.
{¶ 14} Fremont Rental argues that petitioners' claim is barred under the doctrine of laches. We have applied laches in election cases, which require relators to exercise "[e]xtreme diligence and promptness." State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections , 86 Ohio St.3d 107, 113, 712 N.E.2d 696 (1999). "The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party." State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections , 74 Ohio St.3d 143, 145, 656 N.E.2d 1277 (1995).
{¶ 15} Fremont Rental argues that petitioners unreasonably delayed by bringing this action on August 26—11 days after the board's decision. Indeed, this delay could...
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