State ex rel. Jurcisin v. Cotner, 84-441

• Decision Date: 10 April 1984
• Docket Number: No. 84-441,84-441
• Citation: 10 OBR 503,10 Ohio St.3d 171,462 N.E.2d 381
• Parties: , 10 O.B.R. 503 The STATE, ex rel. JURCISIN et al., v. COTNER, Council Clerk, et al.
• Court: Ohio Supreme Court

Page 171

10 Ohio St.3d 171

462 N.E.2d 381, 10 O.B.R. 503

The STATE, ex rel. JURCISIN et al., v. COTNER, Council Clerk, et al.

No. 84-441.

Supreme Court of Ohio.

April 10, 1984.

Chattman, Garfield, Friedlander & Paul, Gerald B. Chattman, Douglas J. Paul and Richard G. Ross, Cleveland, for relators.

John D. Maddox, Director of Law, Kathleen A. Martin and Irving Berger, Cleveland, for respondents.

PER CURIAM.

The duties of respondents with regard to initiative petitions proposing charter amendments are set forth in Section 200 of the Cleveland City Charter which provides, in relevant part:

"Proposed amendments to this Charter may be submitted to the electors of the City, * * * and upon petition signed by ten percent of the electors of the City, setting forth any such proposed amendment, prepared and filed with the Council, through its Clerk in the manner and form prescribed in this Charter for the preparation and filing with the Clerk of an initiative petition for an ordinance, such proposed amendment shall be submitted to the electors of the City by the Council. * * * The ordinance providing for the submission of any such proposed amendment shall require that such proposed amendment be submitted to the electors at the next regular Municipal election if one shall occur not less than sixty days nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission of the proposed amendment at a special election to be called and held within the time aforesaid. When ten (10) days and two regular meetings of the Council have passed after the filing of a petition fulfilling the requirements of this section, then the Council shall forthwith provide the ordinance for the submission to the electors of the proposed amendment to this Charter. * * * " (Emphasis added.)

Relators argue that this charter provision required respondents to enact the ordinance on March 8, 1984, the tenth day after the petitions were filed, regardless of whether a council meeting was regularly scheduled for that day. Two council meetings had passed since the petition was filed--one on February 27, 1984 and the other on March 5, 1984. Had respondents acted on March 8, 1984, an ordinance could have been enacted to place the issue on the ballot for May 8, 1984. ¹

Respondents, however, waited until the next regularly scheduled council meeting on March 12, 1984, to enact the ordinance. By that time, the May 8, 1984 election was less than sixty days away and outside the time required by the charter. Relators allege this delay was intentionally created to prevent the issue from being placed on the ballot at a regularly scheduled election.

We agree. Council was aware of the sixty-day provision in the charter and knew that waiting until March 12, 1984 to enact the ordinance would prevent the issue from being placed on the ballot on May 8, 1984. The charter requires that the ordinance be enacted "forthwith," vesting some discretion in council to determine the time for compliance. In the case at bar, council's action in waiting to enact the ordinance until the next regularly scheduled meeting, thereby creating the additional expense and hardship of having a second election within six weeks of one already scheduled, constitutes an abuse of that discretion.

Accordingly, the writ is allowed and respondents are hereby ordered to take all steps necessary to submit the issue to the voters of the city of Cleveland at the election to be held May 8, 1984.

This order shall be self-executing. The Clerk of the Ohio Supreme Court shall immediately certify this judgment to the Secretary of State and, in the event of respondents' noncompliance, the Secretary of State is directed upon the force of this order to utilize such portion of this order as is necessary to place the issue on the ballot on May 8, 1984.

Writ allowed.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur.

LOCHER and HOLMES, JJ., dissent.

LOCHER, Justice, dissenting.

I must dissent from the position taken by the majority for the reason that there has been no showing that council delayed to intentionally avoid the May 8, 1984 election and therefore I would deny the writ.

The charter, rather than imposing a specific time limit for enacting the ordinance in question, requires only that it be accomplished "forthwith" after the passage of ten days and two regular council meetings. Numerous jurisdictions have adopted a definition of "forthwith" which recognizes that whatever must occur "forthwith" must occur within a reasonable time--not immediately, as the majority would suggest. North Carolina v. Ward (1976), 31 N.C.App. 104, 106-107, 228 S.E.2d 490; People v. Glen (1972), 30 N.Y.2d 252, 260, 331 N.Y.S.2d 656, 282 N.E.2d 614, certiorari denied sub nom. Baker v. New York (1972), 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91; In re Application of the Atty. Gen. of New Jersey (1971), 116 N.J.Super. 143, 147, 281 A.2d 284; Hinse v. Burns (1967), 108 N.H. 58, 60, 226 A.2d 865; Ervin v. Beland (1968), 251 Md. 612, 617, 248 A.2d 336; Jenkins v. Hill (1966), 240 Ark. 197, 202-203, 398 S.W.2d 679; Atl. Natl. Bank of Jacksonville v. St. L. Union Tr. Co. (1948), 357 Mo. 770, 779, 211 S.W.2d 2; Omohundro v. Palmer (1932), 158 Va. 693, 696, 164 S.E. 541. The passage of the ordinance at the next regularly scheduled council meeting, which occurred less than a week after certification, was timely and within a reasonable period of time pursuant to the charter provision. While we sympathize with relators' concern that a separate election must now be conducted, creating additional expense and delay, we cannot find that respondents acted unlawfully or abused their discretion as required to...