State ex rel. Jones v. Husted
| Decision Date | 09 September 2016 |
| Docket Number | No. 2016–1235.,2016–1235. |
| Citation | 149 Ohio St.3d 110,73 N.E.3d 463,2016 Ohio 5752 |
| Parties | The STATE ex rel. JONES et al. v. HUSTED. |
| Court | Ohio Supreme Court |
McTigue & Colombo, L.L.C., Donald J. McTigue, Columbus, J. Corey Colombo, and Derek S. Clinger, Columbus, for relators.
Michael DeWine, Attorney General, Steven T. Voigt, Principal Assistant Attorney General, and Brodi J. Conover, Assistant Attorney General, for respondent.
Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, Nelson M. Reid, and James P. Schuck, Columbus, urging denial of the writ for amici curiae Ohio Manufacturers' Association, Ohio Chamber of Commerce, Pharmaceutical and Research Manufacturers of America, Keith A. Lake, and Ryan R. Augsburger.
{¶ 1} This mandamus action is the refiled companion case to Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act, 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399 ("Ohio Manufacturers' Assn. "). Relators, Tracy L. Jones, William S. Booth, Daniel L. Darland, and Latonya D. Thurman (hereafter, "the committee"), seek a writ of mandamus to compel Ohio Secretary of State Jon Husted to count more than 21,000 previously invalidated signatures in support of the "Ohio Drug Price Relief Act."
{¶ 2} For the reasons explained below, we grant the writ in part.
{¶ 3} On December 22, 2015, the committee submitted approximately 10,029 part-petitions, containing 171,205 signatures, to Husted's office. Husted ordered the boards of elections to verify the petition signatures by 12:00 p.m. on December 30, 2015.
{¶ 4} Husted received certification forms from all 88 counties by the deadline. The county boards certified 119,031 valid signatures, 27,354 more than required, and sufficient totals from 48 counties, four more than required. However, Husted did not transmit the petitions to the General Assembly.
{¶ 5} Instead, on January 4, 2016, he issued Directive 2016–01, returning the part-petitions to the county boards with instructions to re-review two aspects of them and recertify the results. In response, on January 6, 2016, the committee filed a complaint for a writ of mandamus against Husted, challenging his authority to resubmit the part-petitions to the county boards for a second signature review. State ex rel. Jones v. Husted, case No. 2016–0020 ("Jones I ").
{¶ 6} As a result of the re-review, seven county boards of elections invalidated part-petitions on the grounds that they contained signature deletions. Specifically, the committee alleges:
{¶ 7} The Cuyahoga County Board of Elections initially certified 1,779 valid part-petitions, containing 26,113 valid signatures. In the second review, the board invalidated 18 part-petitions, reducing the total number of valid signatures to 25,855. However, Husted sua sponte invalidated 1,370 part-petitions containing 20,102 signatures from Cuyahoga County. He took this action based solely on evidence that unauthorized parties had stricken signatures from these part-petitions. His final certification included only 5,753 signatures from Cuyahoga County.
{¶ 8} The Delaware County Board of Elections initially certified 85 valid part-petitions, containing 324 valid signatures. But during its re-review, the board tied two-to-two on whether to invalidate part-petitions containing crossed-out signatures. Husted has never issued a decision breaking the tie. Instead, his final certification included zero signatures from Delaware County.
{¶ 9} Despite the invalidation of these signatures on re-review, Husted determined that the petition contained sufficient valid signatures, and so on February 4, 2016, he transmitted the proposed law to the General Assembly. Having achieved the desired result, the committee filed an application to dismiss Jones I as moot and we granted that motion. 144 Ohio St.3d 1472, 2016-Ohio-457, 45 N.E.3d 240.
{¶ 10} On February 29, 2016, the Ohio Manufacturers' Association and four other parties (collectively, "OMA") filed a signature protest under Article II, Section 1g of the Ohio Constitution. Ohio Manufacturers' Assn., 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399, at ¶ 1. The complaint in Ohio Manufacturers' Assn. alleged that the secretary had certified thousands of invalid petition signatures and that the actual number of valid signatures was below the constitutional threshold for transmitting the initiative to the legislature. Id. at ¶ 8.
{¶ 11} On March 25, 2016, while Ohio Manufacturers' Assn. was pending, the committee filed a mandamus complaint against Husted and ten county boards of elections. State ex rel. Jones v. Husted, case No. 2016–0455 ("Jones II "). The Jones II complaint challenged Husted's authority to order a re-review of the signatures and sought a writ restoring the signatures invalidated during the second review. In addition, the complaint sought an order reversing Husted's decision to invalidate the Cuyahoga County part-petitions and compelling him to break the Delaware County tie in favor of the 324 signatures previously verified. And it alleged that the Sandusky County Board of Elections had invalidated six part-petitions for overcounting signatures when the circulator statements were in fact accurate.
{¶ 12} The Jones II relators filed a motion to consolidate their case with Ohio Manufacturers' Assn. On June 15, 2016, we dismissed Jones II without prejudice as premature, and we denied the motion to consolidate as moot. 146 Ohio St.3d 1412, 2016-Ohio-3390, 51 N.E.3d 658.
{¶ 13} On August 15, 2016, we decided Ohio Manufacturers' Assn., rejecting OMA's claim that part-petitions are invalid if any names thereon are crossed out by unauthorized persons. 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399, at ¶ 11–32. However, we invalidated 10,303 petition signatures, due to overcounting on the circulators' statements and the use of two ineligible circulators. Id. at ¶ 46. Pursuant to Ohio Constitution, Article II, Section 1g, we gave the petition committee members ten days in which to make up the 5,044 signature shortfall established by the evidence in that case, and we ordered that if they were successful, the initiative should be resubmitted to the General Assembly for consideration. Id. at ¶ 47.1
{¶ 14} On August 17, 2016, the committee filed the present mandamus action. State ex rel. Jones v. Husted, case No. 2016–1235 ("Jones III "). Jones III seeks the same relief that Jones II sought: restoration of the signatures invalidated during the re-review by the county boards of elections, restoration of the Cuyahoga County signatures invalidated by Husted, correction of the alleged error of Sandusky County Board of Elections, and an order breaking the tie in Delaware County in favor of counting those signatures.
{¶ 15} On August 31, 2016, the committee proffered supplementary part-petitions to Husted to further its attempt to proceed directly to the November 2017 ballot, but he refused to accept them for filing.
{¶ 16} On September 6, 2016, after the committee had submitted additional signatures pursuant to our decision in Ohio Manufacturers' Assn. and sufficient signatures had been validated, Husted resubmitted the proposed initiative to the General Assembly.
The motion for leave to amend
{¶ 17} In his answer, Husted asserted the affirmative defense of failure to join necessary parties. Anticipating that Husted might argue that the county boards were necessary parties, the committee moved for leave to amend the complaint to add them, if necessary. The absence of the county boards has not become an issue, and we deny the motion as moot.
Procedural arguments
{¶ 18} In his merit brief, filed on August 24, 2016, Husted offers almost no substantive rejoinder to the allegations. Instead, he asserts that the claims in Jones III are barred by res judicata, laches, and other procedural bars. The relators in Ohio Manufacturers' Assn. have submitted an amicus brief "Not Expressly Supporting A Party," in which they make similar arguments about laches, waiver, and other procedural impediments. None of these arguments has merit.
{¶ 19} When Jones II was filed seeking to restore wrongly invalidated signatures, the boards of elections filed a motion for judgment on the pleadings, claiming mootness. They argued that because Husted had certified the petitions to the General Assembly, notwithstanding the allegedly improper signature invalidations, "adding the [* * *] signatures that were allegedly improperly invalidated [* * *] is entirely inconsequential."
{¶ 20} In response, the committee observed that those invalidated signatures might not remain inconsequential, depending on the outcome of OMA's petition challenge:
The instant action [Jones II ] seeks to recover the signatures that were improperly rejected by the Respondents because [those signatures] will be necessary to the sufficiency of the Petition in the event that the legal challenge filed by the Petition's...
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