State, ex rel. Hinkle v. Franklin Cty. Bd. of Elections, 91-1845

• Decision Date: 25 October 1991
• Docket Number: No. 91-1845,91-1845
• Citation: 62 Ohio St.3d 145,580 N.E.2d 767
• Parties: The STATE, ex rel. HINKLE, v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 145

62 Ohio St.3d 145

580 N.E.2d 767

The STATE, ex rel. HINKLE, v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.

No. 91-1845.

Supreme Court of Ohio.

Submitted Oct. 21, 1991.

Decided Oct. 22, 1991.

Opinion Announced Oct. 25, 1991. ^*

Manley, Burke & Fischer, Timothy M. Burke and Carol S. Wood, for relator.

Michael Miller, Pros. Atty., and Harland H. Hale, for respondent.

Lee I. Fisher, Atty. Gen., and Nancy Johnston, for intervenor-respondent Secretary of State, Bob Taft.

Bruce E. Bailey, Law Director, and William J. McLoughlin, urging denial for amicus curiae, city of Westerville.

Donald J. McTigue, urging denial for amici curiae, Cooker Restaurant Corp. et al.

PER CURIAM.

The principal issue presented in this case is: Does Am.Sub.H.B. No. 200 violate Section 15(D), Article II of the Ohio Constitution in that the bill contains more than one subject? For reasons that follow, we hold that Am.Sub.H.B. No. 200, as it was enacted, is unconstitutional under Section 15(D), Article II, and, therefore, that the board of elections cannot invalidate this local option petition pursuant to Section 7 of that bill. Having held this, we need not also decide whether Section 7 is invalid for the other reason Hinkle asserts--that it violates Section 28, Article II of the Ohio Constitution by requiring retroactive application of the current "residence district" definition in R.C. 4301.01(B)(19).

However, our holding requires us also to resolve the board of elections' arguments that a writ of mandamus should be denied because (1) the instant petition is invalid due to fraud, (2) Hinkle lacks standing, or (3) the doctrine of laches applies. For reasons that follow, we find that these arguments do not justify denial of the writ. Thus, we grant a writ of mandamus, but only to compel the board's reconsideration of the petition for the reason that the petition need not comply with current R.C. 4301.01(B)(19).

The One-Subject Rule

Hinkle argues that Am.Sub.H.B. No. 200 is invalid and cannot be applied to him because it contains two subjects with no common relationship or purpose between them and, therefore, violates Section 15(D), Article II of the Ohio Constitution ("No bill shall contain more than one subject, which shall be clearly expressed in its title. * * * ").

We have held that the one-subject rule in Section 15(D), Article II is "merely directory in nature" and that courts have discretion "to rely upon the judgment of the General Assembly as to a bill's compliance with the Constitution." State, ex rel. Dix, v. Celeste (1984), 11 Ohio St.3d 141, 11 OBR 436, 464 N.E.2d 153, syllabus. Accord ComTech Systems, Inc. v. Limbach (1991), 59 Ohio St.3d 96, 99, 570 N.E.2d 1089, 1093. However, we have also held that an enactment will be invalidated due to a "manifestly gross and fraudulent violation of this rule." Dix, supra, at syllabus.

Hinkle relies on Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 19 OBR 1, 482 N.E.2d 575, to establish such a violation here. In Hoover, we considered the enactment of a bill that contained provisions about " 'financing, acquiring, and constructing hospital and health care facilities,' " and other provisions about " 'the licensure of a licentiate of the medical council of Canada.' " Id. at 6, 19 OBR at 5, 482 N.E.2d at 580. Our opinion suggested that these provisions might be so blatantly unrelated that the bill violated the one-subject rule; however, we did not reach the constitutionality of the bill because we were asked to decide only whether a complaint containing this allegation stated a claim for relief sufficient to withstand dismissal under Civ.R. 12(B)(6). Even so, Hinkle asserts that the provisions of Am.Sub.H.B. No. 200 are even less related than were the provisions in the Hoover bill.

We agree. Am.Sub.H.B. No. 200 mainly addresses matters pertaining to the state judicial system: (1) it creates an environmental division in the Franklin County Municipal Court and a judge for that division, amends related provisions, and creates the Clermont County Municipal Court; (2) it adds a common pleas judge in Lucas County; (3) it makes revisions in the municipal and county court law; and (4) it changes the disposition of certain fines paid into municipal and county courts. We see no rational relationship or common purpose between provisions for the Ohio judiciary and Section 7, a liquor control law that defines "residence district" for the purpose of exercising the local option privilege.

We recognize that the one-subject rule prohibits disunity of subjects, but allows a plurality of topics. ComTech Systems, Inc., supra, 59 Ohio St.3d at 99, 570 N.E.2d at 1093. However, we are not persuaded by the board of elections' argument that Am.Sub.H.B. No. 200 manifests two topics on the same subject--"election matters"--because it provides for elective judicial offices and pertains to local option elections. To say that laws relating to the state judiciary and local option have elections in common is akin to saying that securities laws and drug trafficking penalties have sales in common--the connection is merely coincidental.

In Dix, we said:

" * * * [A]n absence of common purpose or relationship between specific topics in an act and when there are no discernible practical, rational or legitimate reasons for combining * * * provisions in one act * * * [strongly suggest] that the provisions were combined for tactical reasons, i.e., logrolling. Inasmuch as this was the very evil the one-subject rule was designed to prevent, an act which contains such unrelated provisions must necessarily be held to be invalid in order to effectuate the purposes of the rule." Id., 11 Ohio St.3d at 145, 11 OBR at 440, 464 N.E.2d at 157.

Am.Sub.H.B. No. 200 falls within this language and, therefore, violates Section 15(D), Article II of the Ohio Constitution to the extent that the bill incorporates Section 7. Accordingly, we sever the offending portion of the bill, see, e.g., Livingston v. Clawson (1982), 2 Ohio App.3d 173, 2 OBR 189, 440 N.E.2d 1383, to cure the defect and save the portions of Am.Sub.H.B. No. 200 other than Section 7 which do relate to a single subject. We hold Section 7 invalid such that its terms cannot be applied to Hinkle. Hinkle has thus established that the board of elections has a clear duty not to reject his petition for the reason that the petition must comply with current R.C. 4301.01(B)(19).

Fraud, Laches and Standing

To show that Hinkle's November 2, 1990 petition is invalid for fraud notwithstanding Am.Sub.H.B. No. 200, the board of elections submits that the instant ten petition papers contain the same signatures and circulator's statements as did the ten local option petition papers that Hinkle filed for the general election of last year. In State, ex rel. Hinkle, v. Franklin Cty. Bd. of Elections (1990), 55 Ohio St.3d 711, 563 N.E.2d 297, we denied a writ of mandamus to compel an election pursuant to this earlier petition, in part because evidence before the board suggested that Hinkle had not witnessed all the petition signatures as declared in the circulator's statements. Thus, the board argues that Hinkle's November 2, 1990 petition papers, which were apparently circulated at the same time as the earlier petition papers, suffer the same infirmity and are just as invalid.

The evidence submitted on this issue consists mainly of testimony and exhibits compiled before the instant petition was filed with the board of elections. Thus, while the evidence causes some suspicion in our minds, we do not consider it conclusive of fraud here. More importantly, our review here is limited to determining whether the board clearly disregarded the law in disapproving Hinkle's petition, State, ex rel. Beck, v. Casey (1990), 51 Ohio St.3d 79, 80, 554 N.E.2d 1284, 1285; our function is not to conduct an independent evaluation of the petition papers themselves. The board did not invalidate this petition due to fraud in the circulator's statement. For us to do so would supplant the board's obligation, under R.C. 4305.14(C)(1), to decide the validity of local option petitions. ¹

Thus, if fraud exists in Hinkle's November 2, 1990 petition, the board of elections must make this determination. As a procedural matter, we note that the board may make this determination now, even though the deadline in R.C. 4305.14(C)(1) (sixty-six days prior to the election) has passed. We draw this conclusion from State, ex rel. Svete, v. Geauga Cty. Bd. of Elections (1965), 4 Ohio St.2d 16, 33 O.O.2d 139, 212 N.E.2d 420, which held, in effect, that a deadline for board approval of a petition is directory, not mandatory. There, in denying a writ of mandamus to force an election on a candidate's nominating petition that a board of elections had invalidated after the statutory deadline, we said:

"The purpose of the statute is to get the board to act promptly. It was not designed to give validity to an invalid petition where not acted upon by the board within a definite period of time. The mere failure of the board to declare the petition void within the statutory time does not render the petition valid since the statute does not state that the petition shall be valid if not declared void by the board within the time named in the statute." Id. at 17, 33 O.O.2d at 140, 212 N.E.2d at 421.

R.C. 4305.14(C)(1) also does not state that a petition is valid if not declared void within the statutory period. Accordingly, if evidence establishes that Hinkle's petition resulted from fraud in the circulator's statements, the board of elections here may still invalidate the petition, notwithstanding the deadline in R.C. 4305.14(C)(1).

The board of elections also asserts that Hinkle lacks standing because he is not a real party in interest. The board cites In re Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 56 O.O.2d 404, 273 N.E.2d 903, which describes a "real party in interest," among other ways, as...