State ex rel. Khumprakob v. Mahoning Cnty. Bd. of Elections

• Decision Date: 24 April 2018
• Docket Number: No. 2018–0404,2018–0404
• Parties: The STATE EX REL. KHUMPRAKOB et al. v. MAHONING COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

153 Ohio St.3d 581

109 N.E.3d 1184

2018 Ohio 1602

The STATE EX REL. KHUMPRAKOB et al.

v.MAHONING COUNTY BOARD OF ELECTIONS et al.

No. 2018–0404

Supreme Court of Ohio.

Submitted April 12, 2018

Decided April 24, 2018

Terry J. Lodge and Jensen Silvis, for relators.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Sharon K. Hackett, Linette M. Stratford, and Mark D'Apolito, Assistant Prosecuting Attorneys, for respondents.

Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, and Kathleen M. Trafford ; and McTigue & Colombo, L.L.C., Donald J. McTigue, Columbus, and Ben F.C. Wallace, urging denial of the writ for amici curiae Affiliated Construction Trades Ohio Foundation, Ohio Chamber of Commerce, and American Petroleum Institute.

Mangano Law Offices Co., L.P.A., Joseph J. Guarino III, and Ryan K. Hymore, Cleveland, urging denial of the writ for amici curiae Western Reserve Building and Construction Trades Council (Youngstown Warren Regional Chamber), Youngstown Warren Black Caucus, Community Mobilization Coalition, and Mahoning Trumbull AFL–CIO.

Per Curiam.

{¶ 1} In this case, relators, four Youngstown electors,¹ seek a writ of mandamus to compel respondents, the Mahoning County Board of Elections and its members (collectively, "the board"), to place a proposed amendment to the Youngstown city charter—a so-called "Youngstown Drinking Water Protection Bill of Rights"—on the May 2018 ballot. The proposed charter amendment, if adopted by Youngtown's electors, would in general terms (1) recognize certain rights of Youngstown residents and of "ecosystems and natural communities within the city" to "clean water, air, and soil" and to be free from certain fossil-fuel drilling and extraction activities, (2) require the city to prosecute violations of the amendment and allow the city to recover attorney fees and experts’ costs incurred in prosecuting violations, (3) impose strict liability on any government or corporation that violates the rights established by the amendment, (4) restrict the use of funds allocated to the city's water and sewer infrastructure, and (5) give the people of Youngstown the right "to compel their governments to protect their rights, health, and safety."

{¶ 2} On February 12, 2018, the committee formed to have the measure placed on the ballot submitted its part-petitions to the Youngstown city clerk. After the board certified a sufficient number of valid signatures to qualify the measure for the ballot, the Youngstown City Council passed an ordinance instructing the board to place the proposed charter amendment on the May 2018 ballot. But the board, finding that the proposed amendment "contains provisions that are beyond the scope of the City of Youngstown's power" to enact, voted not to place the proposed amendment on the ballot.

{¶ 3} On March 16, relators filed this original action for a writ of mandamus to compel the board to place the proposed charter amendment on the ballot.

{¶ 4} To be entitled to a writ of mandamus, relators must prove, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. When we review a decision of a county board of elections, the standard is whether the elections board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.

{¶ 5} We addressed a similar issue last year in State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, which involved an earlier version of the Youngstown Drinking Water Protection Bill of Rights. Like the current proposal, the version at issue in Flak would have given Youngstown residents and the " ‘ecosystems and natural communities within the city’ " the right to " ‘clean water, air, and soil’ " and to be free from certain fossil-fuel drilling and extraction activities. Id. at ¶ 4, quoting the proposed charter amendment at issue in that case. The former proposal also would have authorized "private citizens to enforce their rights through nonviolent direct action or by filing suit as a private attorney general." Id.

{¶ 6} In Flak , applying our caselaw that preceded the enactment of 2016 Sub.H.B. No. 463, we examined whether the board had abused its discretion in determining that the measure was outside the municipality's legislative authority. See Flak at ¶ 9, 17. We agreed with the board's determination that a municipality lacks legislative power to authorize Youngstown residents to file suit as a "private attorney general," because a municipality cannot create a new cause of action. Id. at ¶ 15–16.

{¶ 7} Significantly, the offending provision in Flak is not included in the proposed charter amendment now before us, and the board offers no clear support for its conclusion that relators' current proposal is beyond the scope of the city's legislative power. The hearing transcript reveals that two members of the board decided this matter on the basis of Flak , but there was no creation of a private right of action—an "individual's right to sue in a personal capacity to enforce a legal claim," Black's Law Dictionary 1520 (10th Ed.2014)—in this case.

{¶ 8} A municipality retains the ability to "make the violation of any of its ordinances a misdemeanor, and provide for the punishment thereof by fine or imprisonment, or both." R.C. 715.67. The proposed charter amendment's requirement that the city prosecute violations of the amendment committed by corporations and its establishment of a strict-liability mens rea for violations may become elements of future ordinances. But as presented to the board, the proposed amendment's provisions are vague and largely aspirational. They do nothing without further legislative action by the city. Thus, although the proposed amendment would not necessarily be constitutional or legally enforceable if enacted, the board abused its discretion in finding that the measure exceeds Youngstown's legislative power.

{¶ 9} We hold that relators have a clear legal right to have their proposal placed on the ballot and that the board has a clear legal duty to provide that relief. Also, because relators could not have challenged the board's action until the board voted to exclude the proposed measure from the ballot, we hold that relators lack an adequate remedy in the ordinary course of the law.

Writ granted.

O'Connor, C.J., and Kennedy, DeWine, and DeGenaro, JJ., concur.

Fischer, J., concurs in judgment only, with an opinion.

French, J., dissents, with an opinion joined by O'Donnell, J.

{¶ 10} I write separately to make clear my reasons for agreeing with this court's judgment in this case.

{¶ 11} Last year, this court held that respondents, the Mahoning County Board of Elections and its members (collectively, "the board"), did not violate a clear legal duty when they excluded a "Youngstown Drinking Water Protection Bill of Rights" from the November 2017 ballot. State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, ¶ 16, citing State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections , 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696. In denying a writ of mandamus, the court held, as it had previously, that a county board of elections has authority, under R.C. 3501.11(K)(1), " ‘to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative.’ " Id. at ¶ 11, quoting State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9. The court determined that the board had not abused its discretion in exercising that authority. Id. at ¶ 9, 18.

{¶ 12} This case presents an opportunity for us to reexamine this court's prior interpretation of R.C. 3501.11(K)(1), to determine whether that interpretation is inconsistent with the separation-of-powers doctrine. I would conclude that it is and would overrule Youngstown , Sensible Norwood , and Flak to the extent that they construe R.C. 3501.11(K)(1) as authorizing and requiring boards of elections to determine whether a proposed measure exceeds a municipality's legislative power. I also would hold that certain provisions enacted through 2016 Sub.H.B. No. 463 ("H.B. 463") are unconstitutional to the extent that they purport to grant that authority to boards of elections.

{¶ 13} The Youngstown city charter provides that proposed amendments to the charter must be submitted to the city's electors "in the manner provided by the Constitution and laws of the State of Ohio." Youngstown Charter 120. Municipal electors have a constitutional right to initiate, by petition, a proposed amendment to their municipality's charter.

State ex rel. Beard v. Hardin , 153 Ohio St.3d 571, 2018-Ohio-1286, 109 N.E.3d 1174, ¶ 20 (lead opinion), citing Ohio Constitution, Article XVIII, Sections 9 and 14. "When a sufficient number of electors sign the petition, the municipality's legislative authority, by ordinance, shall submit the proposal to the electorate." Id. , citing Ohio Constitution, Article XVIII, Sections 8 and 9.

{¶ 14} Relators, four Youngstown electors, argue that they have a clear right to have their proposed charter amendment placed on the ballot because their petition satisfies the signature requirement and Youngstown City Council passed an ordinance calling for placement of the measure on the ballot. They contend that R.C. 731.28 gives the board only a ministerial role, with no authority to exclude a measure from the ballot for substantive legal reasons. Also, relying on the separation-of-powers doctrine and State ex rel. Espen v. Wood Cty. Bd. of Elections , ––– Ohio St.3d ––––, 2017-Ohio-8223, ––– N.E.3d –––– (lead...