State ex rel. Hazel v. Cuyahoga County Bd. of Elections, 97-1822

• Decision Date: 23 September 1997
• Docket Number: No. 97-1822,97-1822
• Citation: 80 Ohio St.3d 165,685 N.E.2d 224
• Parties: The STATE ex rel. HAZEL et al. v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 165

80 Ohio St.3d 165

685 N.E.2d 224

The STATE ex rel. HAZEL et al. v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al.

No. 97-1822.

Supreme Court of Ohio.

Submitted Sept. 22, 1997.

Decided Sept. 23, 1997.

Law Offices of R.A. Pelagalli and Rodger A. Pelagalli, Parma Heights, for relators.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Patrick J. Murphy and Jeffrey I. Sherwin, Assistant Prosecuting Attorneys, for respondents.

PER CURIAM.

Relators initially request a writ of mandamus. The board's decision to uphold the protest will be set aside and a writ of mandamus will issue to compel placement of the proposed ordinance on the November 4 ballot if the board engaged in fraud, corruption, abuse of discretion or clear disregard of statutes or applicable legal provisions. ¹ State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections (1996), 75 Ohio St.3d 275, 277, 662 N.E.2d 17, 19. Relators assert that the board abused its discretion and acted in clear disregard of applicable law by refusing to certify the proposed ordinance for the November 4 election ballot. An abuse of discretion connotes unreasonable, arbitrary, or unconscionable conduct. State ex rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134, 1136.

The board determined that the initiative petition was invalid because it violated the requirement of R.C. 731.31 that each petition part contain a "full and correct copy of the title and text of the proposed ordinance." Omitting the title and/or text of a proposed ordinance is a fatal defect because it interferes with the petition's ability to fairly and substantially present the issue and might mislead electors. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 292, 649 N.E.2d 1205, 1208.

The board ruled that the requirement of R.C. 731.31 was not satisfied because the title and text of the proposed ordinance are ambiguous and misleading. But the board erroneously relies on cases in which the title and/or text of the ordinance was omitted or which involved the requirement of a summary for zoning referendum petitions. See State ex rel. Esch v. Lake Cty. Bd. of Elections (1991), 61 Ohio St.3d 595, 575 N.E.2d 835 (petition did not include title of proposed ordinance); State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153 (petition did not include title and text of county resolution sought to be repealed); Shelly & Sands, Inc. v. Franklin Cty. Bd. of Elections (1984), 12 Ohio St.3d 140, 12 OBR 180, 465 N.E.2d 883 (zoning referendum petition summary); Markus v. Trumbull Cty. Bd. of Elections (1970), 22 Ohio St.2d 197, 51 O.O.2d 277, 259 N.E.2d 501 (zoning referendum petition summary). As we recently held in Christy v. Summit Cty Bd. of Elections (1996), 77 Ohio St.3d 35, 38, 671 N.E.2d 1, 4, such cases are inapposite.

As in Christy, 77 Ohio St.3d at 38, 671 N.E.2d at 4, the initiative petition parts fully complied with R.C. 731.31 because they contained a full and correct copy of the title and text of the proposed ordinance. Contrary to the board's argument, the proposed ordinance contains a title, which is designated as "Penal Facilities Acquisition/Construction/Regulation." See, generally, Black's Law Dictionary (6 Ed.1990) 1485 ("[I]n legislation, the title of the statute is the heading or preliminary part * * *.").

In addition, as in Christy, 77 Ohio St.3d at 39, 671 N.E.2d at 4-5, even assuming that the standards of the zoning referendum petition and ballot language cases applied, inclusion of the full title and text of the ordinance satisfied constitutional and statutory requirements. See, e.g., State ex rel. Williams v. Brown (1977), 52 Ohio St.2d 13, 19-20, 6 O.O.3d 79, 83, 368 N.E.2d 838, 842.

Furthermore, Paragraph D of the proposed ordinance, which repeals and declares void all municipal legislation that is inconsistent with the ordinance, is not, as the board contends, ambiguous or misleading because it fails to specify the inconsistent legislation. Cf. R.C. 1.52(A); State ex rel. Finegold v. Lorain Cty. Bd. of Commrs. (1928), 29 Ohio App. 364, 371, 163 N.E. 585, 587 ("When the Legislature declared in plain language that the procedure set forth in the [new act]should supersede the procedure inconsistent therewith provided by other laws * * *, it in effect repealed such other laws, not by implication, but by express enactment * * *.").

The board thus abused its discretion and acted in clear disregard of applicable law by refusing to place the proposed ordinance on the November 4 election ballot because of asserted noncompliance with R.C. 731.31.

The board next suggests that other reasons support its decision to refuse to submit the issue to the electorate. It notes that although it granted the protest because of the alleged noncompliance with R.C. 731.31, the protestor also contended that the ordinance was not subject to municipal initiative powers because it constituted administrative rather than legislative action. Mandamus will not lie to compel a board of elections to submit an ordinance proposed by initiative petition to the electorate if the ordinance does not involve a subject which a municipality is authorized by law to control by legislative action. State ex rel. Rhodes v. Lake Cty. Bd. of Elections (1967), 12 Ohio St.2d 4, 41 O.O.2d 2, 230 N.E.2d 347.

Section 1f, Article II of the Ohio Constitution provides that "[t]he initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such...