State ex rel. Huebner v. W. Jefferson Village Council, 95-58

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM; MOYER; MOYER
Citation72 Ohio St.3d 589,651 N.E.2d 1001
PartiesThe STATE ex rel. HUEBNER, Appellant, v. WEST JEFFERSON VILLAGE COUNCIL et al., Appellees.
Docket NumberNo. 95-58,95-58
Decision Date26 July 1995

Appellant, David A. Huebner, and other individuals circulated initiative part-petitions to place a proposed charter amendment on the November 8, 1994 ballot for the village of West Jefferson, Ohio. The proposed charter amendment read in part:

"PROPOSED WEST JEFFERSON CHARTER AMENDMENT SECTION (1): BE IT ORDAINED BY THE ELECTORS OF THE VILLAGE OF WEST JEFFERSON, COUNTY OF MADISON, STATE OF OHIO, THAT ARTICLE 4 SECTION 4.05(2) shall read:

" 'The Village of West Jefferson, Ohio, is hereafter restricted to taxing wages only that originate within the boundaries of the Village of West Jefferson, Ohio, at a rate of 1%.' "

On July 18, 1994, Huebner filed the initiative petition, consisting of nine part-petitions, with the Clerk of the West Jefferson Village Council during a council meeting. As of the date the initiative petition was filed, there were 2,272 registered voters in West Jefferson. The number of registered voters who had voted at the last general municipal election held on November 2, 1993 was 482. The Madison County Board of Elections certified that the initiative petition filed by Huebner contained 208 valid signatures.

On August 15, 1994, appellees, West Jefferson Village Council members, unanimously voted not to certify the part-petitions to the board of elections "for the reason that they are not sufficient in form and in substance." Appellees believed that the petition did not contain sufficient valid signatures because it did not have signatures of at least ten percent of all of the electors in the village, i.e., ten percent of the 2,272 registered voters or 228 valid signatures. In addition, appellees thought that the petition misled signators into believing that the proceedings did not involve a charter amendment.

On August 19, 1994, Huebner filed a complaint in the Court of Appeals for Madison County seeking a writ of mandamus to compel appellees to certify the initiative petition concerning the proposed charter amendment to the board of elections, so "that it be submitted to electors at the next regular municipal election if one shall not occur not less than sixty nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission of the question at a special election to be called and held within the time aforesaid." Section 8, Article XVIII, Ohio Constitution.

After Huebner filed a "reply brief" to appellees' answer, appellees filed a motion for summary judgment. Huebner filed a memorandum in opposition to the summary judgment motion. On December 5, 1994, the court of appeals granted appellees' motion for summary judgment and denied the writ.

The cause is now before this court upon an appeal as of right.

David A. Huebner, pro se.

Ronald C. Parsons, Village of West Jefferson Law Director, for appellees.

PER CURIAM.

In order to be entitled to a writ of mandamus, Huebner must establish that (1) he has a clear legal right to have the charter amendment initiative submitted to the electorate, (2) appellees possess a clear legal duty to provide for certification of the proposed charter amendment to the electorate, and 3) Huebner has no adequate remedy in the ordinary course of law. Morris v. Macedonia City Council (1994), 71 Ohio St.3d 52, 54, 641 N.E.2d 1075, 1077.

Huebner asserts in his various propositions of law that the court of appeals erred in granting summary judgment in favor of appellees and failing to issue the requested writ. The court of appeals determined that Huebner's initiative petition did not contain sufficient signatures requiring certification of the proposed charter amendment to the board of elections under Sections 8 and 9, Article XVIII of the Ohio Constitution and Section 16.01, Article XVI of the West Jefferson Village Charter.

Section 7, Article XVIII of the Ohio Constitution authorizes municipal corporations to adopt and amend a home rule charter, and Sections 8 and 9 of Article XVIII prescribe the procedures for adopting and amending a charter. Morris, supra, 71 Ohio St.3d at 54, 641 N.E.2d at 1077, citing State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 336, 617 N.E.2d 1120, 1122. Section 9 of Article XVIII incorporates the requirements of Section 8, and "upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment" requires the legislative authority of any municipality, e.g., village council, to "forthwith" authorize an election on the charter amendment issue. Morris, supra. Section 16.01, Article XVI of the West Jefferson Village Charter similarly provides that "[c]ouncil * * * upon petition signed by not less than ten percent (10%) of the electors of the Municipality setting forth any proposed amendment to this Charter * * * shall submit such proposed amendment to the electors in accordance, in each instance, with the provisions of the [C]onstitution of Ohio and this Charter." An "elector" is a person having the qualifications provided by law to entitle that person to vote. R.C. 3501.01(N).

Appellees and the court of appeals determined that the ten percent of electors specified in Sections 8 and 9, Article XVIII of the Ohio Constitution and Section 16.01, Article XVI of the West Jefferson Village Charter referred to all registered voters of the village. Huebner claims that this determination is erroneous based on Section 1g, Article II, Ohio Constitution, R.C. 3519.22, and R.C. 731.28. However, Section 1g, Article II, Ohio Constitution and R.C. 3519.22 apply only to statewide initiative and referendum petitions. See, e.g., State ex rel. Home Fed. S. & L. Assn. of Hamilton v. Moser (1974), 40 Ohio St.2d 94, 69 O.O.2d 442, 320 N.E.2d 672, paragraph one of the syllabus; Dillon v. Cleveland (1927), 117 Ohio St. 258, 158 N.E. 606, paragraph two of the syllabus; cf. State ex rel. Spadafora v. Toledo City Council (1994), 71 Ohio St.3d 546, 549, 644 N.E.2d 393, 395 (court concedes R.C. Chapter 3519 involves statewide initiative and referendum petitions, but holds that city council may invalidate signatures affixed to municipal referendum part-petition where part-petition violates R.C. 3519.06[C] on its face). Further, to the extent that the foregoing provisions, as well as R.C. 731.28, conflict with the charter amendment provisions set forth in Sections 8 and 9, Article XVIII of the Ohio Constitution, they are inapplicable. State ex rel. Semik, supra, 67 Ohio St.3d at 336, 617 N.E.2d at 1122; State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 22, 577 N.E.2d 645, 648-649.

Huebner's main contention below and on appeal is that Sections 8 and 9, Article XVIII of the Ohio Constitution and Section 16.01, Article XVI of the West Jefferson Village Charter should be construed in conjunction with Section 14 of Article XVIII, which provides:

"All elections and submissions of questions provided for in this article shall be conducted by the election authorities prescribed by general law. The percentage of electors required to sign any petition provided for herein shall be based upon the total cast at the last preceding general municipal election." (Emphasis added.)

The Home Rule Amendment to the Ohio Constitution authorizes municipalities "to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." Section 3, Article XVIII, Ohio Constitution. Municipal elections are matters of local self-government and may be the subject of a charter provision. State ex rel. Bedford, supra, 62 Ohio St.3d at 19, 577 N.E.2d at 646. Therefore, to the extent that Section 16.01, Article XVI of the West Jefferson Village Charter conflicts with Section 14, Article XVIII of the Ohio Constitution, the Home Rule Amendment provides that the charter provision controls. Although the court of appeals did not base its decision on the foregoing, it supplies an independent basis to affirm its decision.

Instead of contending that the charter provision is controlling under the village's home rule powers, appellees argued that Section 16.01, Article XVI of the West Jefferson Village Charter is in accordance with Sections 8 and 9, Article XVIII of the Ohio Constitution.

Absent any provision in the Ohio Constitution regarding the interpretative issues involved, we may apply the general laws regarding statutory interpretation. See State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections (1993), 67 Ohio St.3d 597, 600, 622 N.E.2d 329, 331 (plurality opinion applying general provisions regarding statutory interpretation to analysis of municipal charter); see, also, State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 142, 630 N.E.2d 708, 711.

R.C. 1.51 provides:

"If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail." See, also, State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities (1994), 68 Ohio St.3d 426, 429-430, 627 N.E.2d 993, 996; United Tel. Co. of Ohio v. Limbach (1994), 71 Ohio St.3d 369, 372, 643 N.E.2d 1129, 1131.

The court of appeals determined that Section 9, Article XVIII of the Ohio Constitution is a special provision concerning charter amendments and thus controls over the general provision of Section 14, Article XVIII, Ohio Constitution. We agree. Section 9 specifically addresses petitions on proposed charter amendments. Conversely...

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