State, ex rel. Hodges, v. Taft

• Decision Date: 13 May 1992
• Docket Number: No. 92-16,92-16
• Citation: 64 Ohio St.3d 1,591 N.E.2d 1186
• Parties: The STATE, ex rel. HODGES et al., v. TAFT, Secy. of State, et al.
• Court: Ohio Supreme Court

Page 1

64 Ohio St.3d 1

591 N.E.2d 1186

The STATE, ex rel. HODGES et al., v. TAFT, Secy. of State, et al.

No. 92-16.

Supreme Court of Ohio.

Submitted April 8, 1992.

Decided May 13, 1992.

This action is brought on relators' petition for a writ of mandamus, which has been filed originally in this court pursuant to Section 2(B)(1)(b), Article IV, Ohio Constitution. Relators John R. Hodges, C. William Swank, and John C. Mahaney, Jr. are electors and taxpayers of the state of Ohio. Respondent Bob Taft is the Secretary of State of Ohio. Respondent Martha L. Butler is Clerk of the Ohio Senate. Respondent Dean Johnson is Legislative Clerk of the Ohio House of Representatives. Also joined as a party respondent is the Ohio General Assembly.

At issue are certain initiative petitions and part-petitions filed with the Secretary of State by persons acting on behalf of Ohio Citizen Action, a not-for-profit corporation, which appears as amicus curiae in opposition to a writ. The petitions proposed "[t]o enact section [sic, Chapter] 3752 of the Revised Code to create a toxic chemical right-to-know law," which would require disclosure of the presence of certain chemicals known to cause cancer, birth defects or other reproductive disorders. The petitions would operate to put the proposed legislation before the General Assembly for its consideration, pursuant to Section 1b, Article II, Ohio Constitution.

The petitions were filed with respondent Taft on December 11, 1991. They purported to contain 163,900 signatures of electors in sixty-seven counties. After reviewing the petitions to determine their county of origin, respondent Taft transmitted them to the boards of elections for those counties on December 16, 1991, along with the secretary's Directive No. 91-40, containing instructions for the petition review process to be conducted by the boards. Among the secretary's instructions concerning the circulator's statement verifying the signatures of electors was the following:

"Circulator's Compensation Statement

"A part-petition should not be rejected because the amount of compensation has not been inserted."

Respondent Taft received back from each of the boards of elections a completed certification reflecting the number of signatures and petitions found to be valid. On January 6, 1992, respondent Taft transmitted to the presiding officers of the Senate and the House of Representatives a letter stating that the initiative petitions satisfied the minimum valid signature requirements of Sections 1b and 1g, Article II of the Ohio Constitution, and attaching a full text of the proposed law. The presiding officers received the secretary's letter, but at the time this case was argued neither house of the General Assembly had acted on the proposal.

On January 6, 1992, relators instituted this action seeking writs of prohibition and mandamus. The complaint for a writ of prohibition was dismissed sua sponte, and relators have abandoned their request for that relief. In support of their request for a writ of mandamus, relators argue that respondent Taft acted contrary to the duties imposed on him by law, in two ways.

First, relators argue that respondent Taft's directive to the boards of elections was contrary to R.C. 3519.05, which, relators urge, requires that circulators of petitions state the amount of their compensation as a part of their verification statements. Relators also claim that the secretary's failure to himself review and reject the petitions for these and other verification failures was a violation of the duties imposed on him by law.

Second, relators argue that Section 1b, Article II required respondent Taft to refrain from certifying the legislation proposed by way of these initiative petitions to the General Assembly until the beginning of the next legislative biennium on the first Monday of 1993, making his January 6, 1992 certification invalid.

For relief, relators request a writ of mandamus restraining the General Assembly and respondents Butler and Johnson from introducing the proposed law for consideration in either house before this matter is determined. Relators also request a writ of mandamus ordering respondent Taft to retract his certification of the law proposed by the initiative and to refrain from transmitting it until the next legislative biennium in January 1993. Lastly, relators request a writ of mandamus ordering respondent Taft to resubmit the petitions and part-petitions to the several boards of elections with instructions for their review in accordance with law.

Respondents Taft, the General Assembly, Butler, and Johnson have answered the complaint, denying the violations of law alleged.

The parties have, pursuant to Section 7, Rule VIII of the Supreme Court Rules of Practice, filed an agreed stipulation of facts, which is consistent with the recitation above.

The cause is now before the court for determination on the merits.

Vorys, Sater, Seymour & Pease, Sandra J. Anderson and Jacob E. Davis, II, Columbus, for relators.

Lee I. Fisher, Atty. Gen., Cherry L. Poteet and Andrew I. Sutter, Columbus, for respondent Bob Taft.

Lee I. Fisher, Atty. Gen., and Theresa Rittinger Schaefer, Columbus, for respondents General Assembly, Martha L. Butler and Dean Johnson.

Donald J. McTigue, Youngstown, urging denial of the writ for amicus curiae, Ohio Citizen Action.

THOMAS J. GRADY, Judge.

The complaint presents three issues for consideration:

(1) Whether respondent Taft was required to disqualify those petitions and part-petitions without an executed circulator's compensation statement and/or required to advise the boards of elections to do so;

(2) Whether respondent Taft was required to withhold transmission of the proposed law to the General Assembly until the beginning of the next biennium in January 1993; and

(3) Whether the prerequisites for mandamus have been satisfied.

I Mandamus

A writ of mandamus is an order, in this case to a public officer, to perform an act which the law specifically enjoins as a duty resulting from his office. R.C. 2731.01. In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that the relator has no plain and adequate remedy at law. State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 8 O.O.3d 36, 374 N.E.2d 641.

A court in a mandamus proceeding cannot create the legal duty the relator would enforce through it; creation of the duty is the distinct function of the legislative branch of government. State, ex rel. Stanley, v. Cook (1946), 146 Ohio St. 348, 32 O.O. 419, 66 N.E.2d 207; Davis v. State, ex rel. Pecsok (1936), 130 Ohio St. 411, 5 O.O. 20, 200 N.E. 181, paragraph one of the syllabus.

Mandamus cannot be used to compel the performance of a permissive act. State, ex rel. Niles, v. Bernard (1978), 53 Ohio St.2d 31, 7 O.O.3d 119, 372 N.E.2d 339. A writ cannot issue to control an officer's exercise of discretion, but it can be issued to compel him to exercise it when he has a clear legal duty to do so. See State, ex rel. Martin, v. Corrigan (1986), 25 Ohio St.3d 29, 25 OBR 24, 494 N.E.2d 1128.

Where a petition filed in this court or in the court of appeals is in the form of a proceeding in mandamus but the substance of the allegations makes it manifest that the real object of the relator is an injunction, such a petition does not state a cause of action for mandamus and must be dismissed for want of jurisdiction. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus. In that event, a remedy in injunction must be pursued. State, ex rel. Corron, v. Wisner (1971), 25 Ohio St.2d 160, 54 O.O.2d 281, 267 N.E.2d 308. The availability of an action for declaratory judgment does not bar issuance of a writ of mandamus when the relator demonstrates a clear legal right to it, although the availability of declaratory judgment may be considered by the court as an element in deciding whether a writ should issue. State, ex rel. Fenske, v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525, paragraph two of the syllabus.

A petition for writ of mandamus must set forth facts showing that the relator is a party beneficially interested in the requested act before a proper claim is established. R.C. 2731.02; State, ex rel. Snyder, v. State Controlling Bd. (1983), 11 Ohio App.3d 270, 11 OBR 449, 464 N.E.2d 617. The status of a taxpayer is generally sufficient to show such an interest. State, ex rel. Pressley, v. Indus. Comm., supra, paragraph nine of the syllabus.

Relators Hodges, Swank, and Mahaney allege that they are taxpayers and electors. Respondent Taft admits the allegation. The remaining respondents deny for want of knowledge, but have not otherwise refuted. Relators have, therefore, demonstrated a beneficial interest in the act or acts they request. Whether they are entitled to the writ they request requires a discussion of the specific causes and grounds involved.

II Verification of Petitions

Section 1, Article II of the Ohio Constitution places the legislative power of the state in the General Assembly, but reserves to the people the right to propose, adopt or reject legislation and constitutional amendments by initiative and referendum. The grant to the General Assembly is a delegated power. Initiative and referendum are reserved powers. "[They] comprehen5all *St.3d of the sovereign power of legislation not thus delegated. * * * [The powers are] not to be restricted by any limitations, except such as are imbedded [sic ] in the federal constitution." Pfeifer v. Graves (1913), 88 Ohio St. 473, 486, 104 N.E. 529, 533. The powers of initiative and referendum should be liberally construed to effectuate the rights reserved. Hilltop Realty, Inc. v. South Euclid (1960), 110 Ohio App. 535, 13 O.O.2d 348, 164 N.E.2d 180. " *...