State ex rel. McCann v. Del. Cnty. Bd. of Elections
| Decision Date | 21 August 2018 |
| Docket Number | No. 2018-1037,2018-1037 |
| Citation | 118 N.E.3d 224,2018 Ohio 3342,155 Ohio St.3d 14 |
| Parties | The STATE EX REL. MCCANN et al. v. DELAWARE COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
{¶ 1} In this expedited elections case, relators, Norma J. McCann and James E. Wheeler ("the protestors"), seek a writ of prohibition to prevent respondent, Delaware County Board of Elections ("the board"), from placing a township zoning referendum on the November 2018 ballot. We grant the writ because on one of the part-petitions, a person other than the circulator indicated the number of signatures that the circulator had witnessed, invalidating the part-petition, and without the signatures on that part-petition, the referendum petition lacks sufficient signatures for placement on the ballot.
{¶ 2} In March 2018, the Harlem Township Board of Trustees approved John D. McCann's request to rezone 13.28 acres from "agricultural residential" to "planned commercial district." A group of township residents circulated a petition for a township zoning referendum requesting that the trustees submit the zoning change to the voters of the township in the November 2018 general election. On April 18, the petitioners submitted the petition to the trustees. On April 25, the trustees certified the petition to the board to determine its sufficiency and validity in accordance with R.C. 519.12(H).
{¶ 3} The petition included 12 or 13 part-petitions (depending on how they are counted); the board numbered them 1 through 13. The petitioners used the secretary of state's two-page form 6-O. The form's first page contains spaces to include information about the proposed zoning amendment and requested referendum, plus 4 signature lines, numbered 1 through 4. The second page contains 14 additional signature lines, numbered 5 through 18, a circulator statement, and a space for the township fiscal officer to acknowledge receipt of the part-petition. The circulator statement contains a blank for the circulator to write in the number of signatures he witnessed:
Most of the submitted part-petitions consisted of the form's two pages, but three part-petitions contained three pages: part-petition No. 1, part-petition No. 2, and a grouping of pages that the board labeled part-petition Nos. 11 and 12.
{¶ 4} Part-petition No. 1 consisted of one form–6-O first page and two form–6-O second pages. The 4 signature lines on the first page were marked out with an "X," and no signatures appeared on that page. The 14 signature lines on the second page were renumbered to begin at 1, and the page contained 13 signatures. In the blank in the circulator statement for the number of signatures was written "13 of 16," in two different colors of ink. The signature lines on the third page were renumbered to begin at 14, and the page contained 3 signatures. The blank in the circulator statement for the number of signatures had a number written in black ink that had been scribbled out in blue ink. Another number was written next to that in blue ink, but that number had also been scribbled out. Finally, in the margin, in blue ink, was written "16 total."
{¶ 5} Part-petition No. 2 also contained one form–6-O first page and two form–6-O second pages. As with part-petition No. 1, the signature lines on its first page were marked out with an "X" and contained no signatures and the 14 signature lines on its second page were renumbered to begin at 1. The second page contained 14 signatures, and in the blank in the circulator statement for the number of signatures was written, in black ink, "pg. 1 of 2," with "28 total" written in the margin. The signature lines on the third page were renumbered to begin at 15, and the page contained 14 signatures. In the blank in the circulator statement for the number of signatures was written, in blue ink, "28." All the circulator statements in part-petition Nos. 1 and 2 were signed by Herman E. Berk Jr.
{¶ 6} Part-petition Nos. 11 and 12 were a grouping of three pages made up of two form–6-O first pages and one form–6-O second page. The first page contained 4 signatures. The signature lines on the second page were renumbered to begin at 5, and the page contained 2 signatures. Those on the third page were renumbered to begin at 7, and the page contained 2 more signatures. In the blank in the circulator statement for the number of signatures the number "8" was written, and the circulator statement was signed by Juanita Berk.
{¶ 7} The referendum petition needed 116 valid signatures to qualify for the ballot. The petitioners submitted 183 signatures, and the board's staff initially verified 146 of them. However, according to its May 24, 2018 meeting minutes, the board then rejected part-petition No. 1 because "of the dual [circulator] statements and the confusion they inspire." The board accepted part-petition No. 2 though, because "the two circulator's statements are consistent." The board rejected part-petition Nos. 11 and 12 without stating a reason. And it rejected part-petition No. 13 because its pages had not been affixed together in any way when submitted. The board found that without the rejected part-petitions, the petition had 127 valid signatures—11 more than necessary—and on May 24, the board certified the referendum to the November 2018 ballot.
{¶ 8} On June 8, the protestors filed with the board their protest against the petition, arguing that the board should have also rejected part-petition No. 2 due to several purported defects and that it should have rejected the entire petition because the part-petitions were affixed together with paperclips, rather than staples, in contravention of board policy. The board held a hearing on the protest on July 17.
{¶ 9} At the hearing, Herman Berk testified that he signed both circulator statements on part-petition No. 2 immediately after the last elector signed each page but that when he signed the statements, he left the space for the number of signatures witnessed blank. He later met with Bonnie Perry, a fellow circulator, and they sat beside each other and each counted the signatures on his part-petition, because Berk wanted Perry to make sure he was counting correctly. Both counted 28 signatures, and in Berk's presence, with his knowledge and permission, Perry wrote "pg 1 of 2," "28 total," and "28" in the blanks. Perry's testimony matched Berk's. She stated that she had made no edits to any of Berk's petition papers; she wrote only the number of signatures that he and she had agreed on. After the circulator statements were completed, Berk gave his part-petition to Perry. Perry collected all 13 part-petitions from the various circulators and then gave them to another person, who filed the petition with the trustees.
{¶ 10} At the conclusion of the hearing, the board unanimously denied the protest. The referendum remains certified to the ballot. The protestors filed this prohibition action on July 24. The following day, we granted their motion to expedite.
{¶ 11} The protestors assert three grounds for a writ of prohibition: (1) that part-petition No. 2 had two circulator statements, (2) that part-petition No. 2's circulator did not indicate on the part-petition the number of signatures witnessed, and (3) that the part-petitions were paper-clipped together, not stapled as board policy requires. Because we issue a writ based on the second ground, we do not address the remaining arguments.
{¶ 12} To obtain a writ of prohibition, the protestors must show that (1) the board exercised quasi-judicial power, (2) the exercise of that power was unlawful, and (3) the protestors have no adequate remedy in the ordinary course of the law. State ex rel. McCord v. Delaware Cty. Bd. of Elections , 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 27. The board exercised quasi-judicial power when it denied the protest after a hearing that included sworn testimony. See id. at ¶ 28. And due to the proximity of the election, the protestors lack an adequate remedy at law. Id. at ¶ 29. The question is, then, whether the protestors have shown that the board engaged in fraud or corruption; abused its discretion, i.e., acted in an unreasonable, arbitrary, or unconscionable fashion; or clearly disregarded applicable legal provisions. Id. at ¶ 30.
{¶ 13} "[R]eferendum provisions should be liberally construed to permit the exercise of the power." S.I. Dev. & Constr., L.L.C. v. Medina Cty. Bd. of Elections , 100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587, ¶ 22. But once their requirements are determined, "the settled rule is that election laws are mandatory and require strict compliance and that substantial compliance is acceptable only when an election provision expressly states that it is." State ex rel. Ditmars v. McSweeney , 94 Ohio St.3d 472, 476, 764 N.E.2d 971 (2002) (plurality opinion).
{¶ 14} The applicable legal provisions are R.C. 519.12(H) and 3501.38(E). R.C. 519.12(H) provides that a township zoning amendment shall become effective 30 days after a board...
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