State ex rel. Heffelfinger v. Brunner

• Decision Date: 01 November 2007
• Docket Number: No. 2007-1908.,2007-1908.
• Parties: The STATE ex rel. HEFFELFINGER et al. v. BRUNNER, Secy. of State.
• Court: Ohio Supreme Court

876 N.E.2d 1231

116 Ohio St.3d 172

2007-Ohio-5838

The STATE ex rel. HEFFELFINGER et al. v. BRUNNER, Secy. of State.

No. 2007-1908.

Supreme Court of Ohio.

Submitted October 29, 2007.

Decided November 1, 2007.

The McTigue Law Group, Donald J. McTigue, Mark A. McGinnis, Columbus, and John M. Stephan, for relators.

Marc Dann, Attorney General, and Damian W. Sikora, Pearl M. Chin, and Richard N. Coglianese, Assistant Attorneys General, for respondent.

Langdon & Hartman, L.L.C., and David R. Langdon, Cincinnati; Alliance Defense Fund and Jeffrey A. Shafer, Cincinnati, urging denial of the writ for amici curiae, David Miller, Bruce Purdy, and Citizens for Community Values.

PER CURIAM.

{¶ 1} This is an expedited election case for a writ of mandamus to compel the secretary of state to, among other things, certify a referendum petition as sufficient and to place the law being challenged by the petition on the November 6, 2007 election ballot. Because relators have not established either a clear legal right to the requested extraordinary relief or a corresponding clear legal duty on the part of the secretary of state to provide it, we deny the writ.

{¶ 2} On May 22, 2007, the General Assembly enacted Sub.S.B. No. 16 ("S.B. 16"), which became law without the governor's approval. 2007 Ohio Laws File 7. The effective date of the law is September 4, 2007. The title to S.B. 16 sets forth the following purposes for the law:

{¶ 3} "To amend section 503.52 and to enact sections 715.55 and 2907.40 of the Revised Code to restrict the hours of operation of sexually oriented businesses, to prohibit patrons and employees of a sexually oriented business who are not immediate family members from touching each other while on the premises of that business and while the employee is nude or seminude, and to require the state to indemnify a township or municipal corporation for liability incurred in enforcing a resolution or ordinance that regulates adult entertainment establishments, is adopted in conformance with the Attorney General's guidance, and is found by a court to be unconstitutional or otherwise legally defective."

{¶ 4} Relator Julie Heffelfinger is the treasurer of a political action committee responsible for filing a petition requesting that S.B. 16 be submitted to a statewide referendum for approval or rejection at the November 6, 2007 general election. Relators Joseph Daniel Vaillancourt, Donna Jean Bowling, and Frank B. Spencer are members of a committee responsible for representing the petitioners in all matters concerning the petition.

{¶ 5} On September 3, 2007, relators filed their referendum petition containing 383,636 signatures with respondent, Secretary of State Jennifer L. Brunner. Under the Ohio Constitution, the petition was required to contain at least 241,366 valid signatures, which must include at least three percent of the electors of at least half of the state's 88 counties. See Sections 1c, Article II, Ohio Constitution ("the signatures of six per centum of the electors shall be required upon a petition to order the submission to the electors of the state for their approval or rejection, of any law") and 1g, Article II, Ohio Constitution ("Upon all * * * referendum petitions provided for in any of the sections of this article, it shall be necessary to file from each one-half of the counties of the state, petitions bearing the signatures of not less than one-half of the designated percentage of the electors of such county. * * * The basis upon which the required number of petitioners in any case shall be determined shall be the total number of votes cast for the office of governor at the last preceding election therefor").

{¶ 6} On September 10, the secretary issued a directive to the county boards of elections providing them with instructions on how to review the part-petitions. In her directive, the secretary emphasized that "[s]ince no person may sign a petition more than once, it is imperative that boards maintain the names of those persons who signed the original part petitions in order to properly verify the signatures on the supplemental part petitions" and that the boards should photocopy for their files the original part-petitions marked with their notations. The secretary transmitted the part-petitions to the boards of elections for their review.

{¶ 7} By certified letter postmarked September 25, 2007, the secretary of state notified the relator committee members that she had determined that the petition contained an insufficient number of signatures i.e., it contained a total of only 125,430 valid signatures and met the signature requirement for only 12 counties. In the letter, the secretary of state further noted that "pursuant to Article II, Section 1g of the Ohio Constitution and Sections 3501.05(K) and 3519.16 of the Ohio Revised Code, petitioners are entitled to ten (10) additional days upon issuance of this notification to file additional valid signatures." The committee members received the letter on September 27. In a subsequent letter from the secretary of state to the committee, the secretary noted that under R.C. 3519.16, the committee had ten days from the September 25 notification to file a supplemental petition.

{¶ 8} On October 5, the committee filed a supplemental petition containing approximately 230,000 signatures with the secretary of state. On October 9 and 10, the secretary of state transmitted the additional part-petitions to the county boards of elections. The secretary of state did not retransmit to the elections boards the part-petitions that constituted the original referendum petition. On October 10, the secretary of state issued a directive to the boards advising them to examine each part-petition in accordance with her instructions. The secretary instructed the elections boards to return the part-petitions with their certification of the number of valid signatures no later than October 15. Some boards did not return the supplemental part-petitions with their certification by that date.

{¶ 9} On October 17, 2007, the secretary of state concluded that the additional part-petitions did not contain sufficient valid signatures when added to the total valid signatures contained in the original petition to meet the signature requirement for a valid referendum petition. The secretary determined that the total of 181,808 valid signatures was less than the 241,366 valid signatures required for submission of S.B. 16 to the electorate at a referendum election.

{¶ 10} On that same date, relators filed this expedited election action for a writ of mandamus to compel the secretary of state (1) "to accept the additional signatures filed on October 5, 2007 as conclusively valid in all respects, add them to the count of valid signatures contained in the original Referendum Petition, and proceed to issue her determination as to the sufficiency of the Referendum Petition," (2) "to accept the additional part-petitions and signatures filed on October 5, 2007 as conclusively valid in all respects that had not been validated and returned to Respondent within the five day period prescribed by R.C. § 3519.16, add them to the count of prior validated signatures contained on the original Referendum Petition and the additional part-petitions that were timely validated and returned, and proceed to issue her determination as to the sufficiency of the Referendum Petition," (3) "to certify the Referendum Petition as sufficient and submit the Referendum Petition question to the electors at the November 6, 2007 General Election," or (4) "to return the original part-petitions to the county boards of elections together with the additional part-petitions and signatures filed on October 5, 2007 for validation as required by R.C. 3519.16."

{¶ 11} On October 18, we ordered the parties to submit evidence and briefs on a more accelerated schedule than that provided for expedited election cases under S.Ct.Prac.R. X(9). Briefing was completed on Friday, October 26. Although the court denied the motion of David Miller, Bruce Purdy, and Citizens for Community Values to intervene as respondents, the prospective intervenors properly filed an amicus curiae brief in support of the secretary of state. See State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902, ¶ 24.

{¶ 12} This cause is now before us upon the merits.

Mandamus

{¶ 13} To be entitled to the requested writ, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 18. Given the proximity of the November 6 election, relators have established that they lack an adequate remedy in the ordinary course of law. State ex rel. Duncan v. Portage Cty. Bd. of Elections, 115 Ohio St.3d 405, 2007-Ohio-5346, 875 N.E.2d 578, ¶ 8.

Presumptive Validity of Statewide Petitions under Section 1g, Article II, Ohio Constitution

{¶ 14} For the remaining requirements, to establish the requisite legal right and legal duty, relators first claim that they are entitled to a writ of mandamus to compel the secretary of state to place S.B. 16 on the November 6 election ballot because the supplemental part-petitions they filed with the secretary of state on October 5 were conclusively valid and when the total number of signatures contained on them are added to the valid signatures in the original petition, the entire petition met the applicable signature requirements.

{¶ 15} "The constitutional right of citizens to referendum is of paramount importance," and the "reserved power of referendum applies to every law passed in this state." State ex rel. Ohio Gen. Assembly v. Brunner, 115 Ohio St.3d 103, 2007-Ohio-4460, 873 N.E.2d 1232,...