State ex rel. Maxcy v. Saferin, 2018-1242

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Kennedy, J.
• Citation: 2018 Ohio 4035,122 N.E.3d 1165,155 Ohio St.3d 496
• Parties: The STATE EX REL. MAXCY et al. v. SAFERIN et al.
• Docket Number: No. 2018-1242,2018-1242
• Decision Date: 04 October 2018

155 Ohio St.3d 496
122 N.E.3d 1165
2018 Ohio 4035

The STATE EX REL. MAXCY et al.
v.
SAFERIN et al.

No. 2018-1242

Supreme Court of Ohio.

Submitted September 25, 2018
Decided October 4, 2018

Warner Mendenhall, Akron, for relators.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, Toledo, for respondents.

Kennedy, J.

155 Ohio St.3d 496

{¶ 1} In this expedited election case, relators, Rebecca C.S. Maxcy, David Ball, Sandy Bashaw, and Sean M. Nestor, seek a writ of mandamus to compel respondents, the Lucas County Board of Elections and its members, Bruce Saferin, Brenda Hill, Joshua Hughes, and David

122 N.E.3d 1167

Karmol, to place a proposed charter amendment on the November 6, 2018 general-election ballot. Because the submission of the proposed charter amendment to the board of elections did not follow the specific procedure outlined in Article XVIII, Sections 8 and 9 of the Ohio Constitution —which require the legislative body of the municipality to pass an ordinance instructing the board of elections to place the proposed amendment on the ballot upon submission of a sufficient petition—we deny the writ.

BACKGROUND

{¶ 2} On August 7, 2018, relators submitted part-petitions in support of a proposed amendment to the Toledo City Charter. Titled "Keep the Jail in Downtown Toledo," the proposed amendment would

(1) require that any new or renovated jail, correctional facility, prison, justice complex, correctional treatment facility, detention center, work release, "or other building that houses criminals or accused criminals, within the City of Toledo limits," be located in the Downtown Overlay District, as defined in the Toledo Municipal Code;

155 Ohio St.3d 497

(2) declare it unlawful for any corporation or government to violate the rights secured by the amendment;

(3) declare that any corporation or government that violates any provision of the amendment "shall be sentenced to pay the maximum fine allowable under State law for that violation"; and

(4) authorize the city of Toledo, or any resident of the city, to enforce the prohibitions of the amendment through an action in the Lucas County Court of Common Pleas, and to recover all costs of litigation, including attorney fees.

{¶ 3} The petition's first page contained the following language:

To the Council, the legislative authority of the City of Toledo, Ohio:

We, the undersigned, qualified electors of the City of Toledo, Ohio respectfully petition the legislative authority to forthwith provide by Ordinance, for the submission to the electors of the City of Toledo, the following proposed amendment to the Charter of the City of Toledo * * *.

(Boldface sic.)

{¶ 4} On August 13, 2018, the Lucas County Board of Elections verified to the clerk of the Toledo City Council that relators had submitted a sufficient number of petition signatures to qualify the measure for the ballot. Relators allege that "[o]n or about August 14, 2018, the Clerk of Toledo City Council, pursuant to his responsibility under § 5 of the Toledo Municipal Charter, instructed the [board] to put the Proposed Amendment on the November 6, 2018 ballot for a public vote." Section 5 of the city charter reads:

Any amendment to this Charter may be submitted to the electors of the City for adoption by resolution of the Council, two-thirds of the members thereof concurring, and shall be submitted when a petition is filed with the Clerk of the Council setting forth the proposed amendment and signed by not less than ten percent of the electors.

{¶ 5} On August 28, 2018, the board voted four to zero to refuse to place the proposed charter amendment on the ballot on the ground that it contained provisions beyond the authority of the city to enact by initiative.

122 N.E.3d 1168

{¶ 6} On August 31, relators filed this action seeking a writ of mandamus to compel the board to place the proposed charter amendment on the November 6, 2018 ballot. Relators allege that

155 Ohio St.3d 498

the [board] engaged in unconstitutional pre-election review of the substance of the Proposed Charter Amendment and voted unanimously to reject the Proposed Amendment from the ballot ostensibly because the Proposed Charter Amendment contains provisions beyond the power of the City of Toledo to enact and that the Ohio Supreme Court "requires" the Proposed Amendment to be stricken.

{¶ 7} Respondents admitted in their answer that the board "examine[d] the proposed initiative—the Downtown Jail Initiative—in accordance with its obligations under Title 35 of the Ohio Revised Code and as set forth by this Court in State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 95 N.E.3d 329 (2017)."

{¶ 8} The parties have filed briefs and evidence in accordance with the schedule for expedited election cases in S.Ct.Prac.R. 12.08.

LAW AND ANALYSIS

The amendment of a city charter is controlled by Article XVIII, Sections 8 and 9 of the Ohio Constitution, not Article II, Section 1f

{¶ 9} The right to amend a municipal charter differs from the right of initiative to enact a municipal ordinance, and the two rights are addressed in separate articles of the Ohio Constitution. The procedure to amend a municipal charter—a matter concerning the structure of a municipal government—is set forth in Article XVIII, Sections 8 and 9 of the Ohio Constitution. In contrast, Article II deals generally with the legislative power, and Section 1f of Article II reserves the right of initiative to the people of each municipality and states that "such powers shall be exercised in the manner now or hereafter provided by law."

{¶ 10} Article XVIII, Section 9 is a specific provision; Article II, Section 1f is general. "Special constitutional provisions relating to a subject will control general provisions in which, but for such special provisions, the subject might be regarded as embraced." Akron v. Roth , 88 Ohio St. 456, 461, 103 N.E. 465 (1913). Article XVIII, Sections 7, 8, and 9 provide specific procedures for amending a charter, while Article II, Section 1f does not. If the framers of the Ohio Constitution had intended Article II, Section 1f to control the amendment of a municipal charter, there would have been no need to provide a separate constitutional provision specifically addressing the procedure for amending a municipal charter. To hold that Article II, Section 1f controls would be to render Article XVIII, Section 9 superfluous.

{¶ 11} Moreover, because Article II, Section 1f states that the power of initiative "shall be exercised in the manner now or hereafter provided by law," municipalities could alter the requirements set forth in Article XVIII, Section 9

155 Ohio St.3d 499

for the amendment of a charter. For instance, Section 75, Toledo City Charter, states that petitions for ordinances proposed by initiative must contain signatures "equal in number to twelve percent (12%) of the total number of votes cast for all candidates for Mayor at the most recent general municipal election at which the Mayor was elected." But this court has held on multiple occasions that Article XVIII, Section 9, read in pari materia with Article XVIII, Section 14, provides that "the number of valid part-petition signatures necessary to establish a right to the placement of a proposed amendment of a municipal charter

122 N.E.3d 1169

before the voters * * * is ten percent of the electors of the municipality based upon the total number of votes cast at the last preceding general municipal election." State ex rel. Huebner v. W. Jefferson Village Council , 75 Ohio St.3d 381, 384, 662 N.E.2d 339 (1995) ; see State ex rel. Wilen v. Kent , 144 Ohio St.3d 121, 2015-Ohio-3763, 41 N.E.3d 390, ¶ 5 ; State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake , 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 24. "We should be hesitant to adopt an analysis that would allow a party to evade the procedure expressly provided by the Constitution for amending a municipal charter simply by characterizing the petition as seeking an initiative rather than a petition for a charter amendment." State ex rel. Twitchell v. Saferin , 155 Ohio St.3d 52, 2018-Ohio-3829, 119 N.E.3d 365, ¶ 32 (Kennedy, J., concurring in judgment only).

{¶ 12} Despite the fact that relators seek to amend the Toledo City Charter, implicating Article XVIII, Sections 8 and 9, they present arguments as if they were exercising their right of initiative under Article II, Section 1f. Related to that assertion is relators' argument that 2016 Sub.H.B. No. 463 ("H.B. 463"), which amended R.C. 3501.11 to require a board of elections to examine an initiative petition "to determine whether the petition falls within the scope of authority to enact via initiative," violates the separation-of-powers doctrine. Those arguments are no doubt...