State ex rel. McGinn v. Walker
| Decision Date | 21 September 2017 |
| Docket Number | No. 2017-1164,2017-1164 |
| Citation | 151 Ohio St.3d 199,2017 Ohio 7714,87 N.E.3d 204 |
| Parties | The STATE EX REL. MCGINN et al. v. WALKER et al. |
| Court | Ohio Supreme Court |
Terry J. Lodge, Toledo, for relators.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Zachary L. Saunders, Assistant Prosecuting Attorney, for Athens County respondents.
S. Forrest Thompson, Medina County Prosecuting Attorney, and Michael K. Lyons, Assistant Prosecuting Attorney, for Medina County respondents.
Porter, Wright, Morris, & Arthur, L.L.P., and L. Bradfield Hughes, Columbus, urging denial of the writs for amici curiae Affiliated Construction Trades Ohio Foundation, the Ohio Chamber of Commerce, the National Association of Royalty Owners, and the American Petroleum Institute.
Chad A. Endsley, Leah F. Curtis, and Amy M. Milam, urging denial of the writs for amicus curiae Ohio Farm Bureau Federation.
{¶ 1} In this expedited election matter, relators, the members of the Athens County and Medina County Committees of Petitioners,1 seek writs of mandamus to compel respondents, their respective county boards of elections,2 to certify initiative petitions to the November ballot. We deny the request for writs.
{¶ 2} The Athens Committee submitted a petition to the Athens County Board of Elections proposing the adoption of a county charter. The proposed charter created an "Executive Council" consisting of seven elected officials.3 The Executive Council would have the power to propose ordinances and resolutions for consideration by the county commission, as well as the authority to approve or veto ordinances approved by the commission.
{¶ 3} On July 10, 2017, the Athens County Board of Elections voted unanimously not to certify the petition to the November 2017 general election ballot. The board of elections conceded that the petition contained sufficient valid signatures but rejected the petition, stating:
[W]e find that the petition is not a valid charter. R.C. 302.02 mandates that an alternative form of county government "shall include either an elective county executive or an appointive county executive."
{¶ 4} Also on July 10, the Medina County Board of Elections voted three to one not to certify a ballot petition submitted by the Medina Committee. The board of elections found that the petition contained sufficient valid signatures, but it concluded that the petition was invalid, stating:
The proposed county charter does not adequately provide for an alternative form of county government, and it contains provisions that are outside of the initiative power because they are not within a county authority to enact.
{¶ 5} On August 1, 2017, the two committees filed protests against the board decisions with the Ohio secretary of state. However, on August 14, 2017, the secretary of state declined to rule on the protests. The secretary reasoned that R.C. 307.94 offers two mutually exclusive avenues for challenging a county-board-of-elections decision: either file a protest or file an action in the common pleas court. And because (according to the secretary), the common pleas courts in Athens and Medina counties had already affirmed the decisions of their respective boards, the committees could not pursue a statutory protest.
{¶ 6} On August 21, 2017, the committees commenced the present action for writs of mandamus. The parties filed briefs and evidence in accordance with the calendar for expedited election cases in S.Ct.Prac.R. 12.08. We also received two amicus briefs in support of the respondent boards of elections, one from the Affiliated Construction Trades Ohio Foundation, the Ohio Chamber of Commerce, the National Association of Royalty Owners, and the American Petroleum Institute, and the other from the Ohio Farm Bureau Federation.
Governing law
{¶ 7} The Ohio Constitution, Article X, Section 3, authorizes the voters in a county to frame and adopt or amend a charter. The process begins with the submission of a petition proposing the form of a county charter to the county board of elections. R.C. 307.94. The board of elections must immediately "determine whether the petition and the signatures on the petition meet the requirements of law." Id. "If the petition is certified by the board of elections to be valid and to have sufficient valid signatures," then the county board of commissioners must, by resolution, certify the petition to the board of elections for submission to the electors at the next general election. Id.
{¶ 8} Thus, R.C. 307.94 imposes a duty on the county elections boards to assess the "validity" of petitions. That duty was echoed in R.C. 3501.11(K), which, prior to April 6 of this year, simply stated that a county board must "[r]eview, examine, and certify the sufficiency and validity of petitions." 2013 Am.Sub.S.B. No. 109.
{¶ 9} Our prior rulings have explained what a board of elections may and may not consider when determining whether a petition is "valid" or "invalid." Election officials can declare a proposed initiative invalid if the measure fails to satisfy the statutory or constitutional prerequisites for a ballot measure. See, e.g., State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419, ¶ 24 (); State ex rel. Choices for South–Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 39, 50–55 ) (board of elections did not abuse its discretion when it rejected a petition that would repeal a tax levy, because the authorizing statute provided only for ballot measures to decrease tax levies).
{¶ 10} "But this authority [of elections boards] to determine whether a ballot measure falls within the scope of the constitutional power of referendum (or initiative) does not permit election officials to sit as arbiters of the legality or constitutionality of a ballot measure's substantive terms." (Emphasis sic.) Walker at ¶ 15. In other words, an elections board could not invalidate a proposed measure that it believed would be unlawful or unconstitutional "in its effects" if approved. State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 12.
R.C. 3501.11(K)(2). H.B. 463 also added the following provision:
R.C. 3501.38(M). The committees have preemptively challenged the constitutionality of these statutory amendments.
Legal analysis
{¶ 12} When reviewing a county-board-of-elections decision, the standard is whether the 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.
{¶ 13} The boards have presented three justifications for their having found the petitions invalid: (1) the proposed county charters do not adequately provide for an alternative form of county government, (2) they contain provisions that are outside the initiative power because they are not within a county's authority to enact, and (3) they fail to provide for the exercise of all powers and duties of county government. We find the third claim to be dispositive.
{¶ 14} The Ohio Constitution mandates that a charter must "provide for the exercise of all powers vested in, and the performance of all duties imposed upon counties and county officers by law." Ohio Constitution, Article X, Section 3. Even under pre-H.B. 463 law, a county elections board had authority to determine whether a proposed charter petition satisfied this constitutional prerequisite. State ex rel. Coover v. Husted, 148 Ohio St.3d 332, 2016-Ohio-5794, 70 N.E.3d 587, ¶ 11.
{¶ 15} Whether a board's decision is substantively correct is a different question. Our decisions have established that overly general references to the powers and duties of county officials will not suffice. Id. at ¶ 16–17. Proposed charters do not satisfy Article X, Section 3 of the Ohio Constitution if "[o]ne must look to sources outside the proposed charters to determine the form of government they purport to establish." Walker, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419, at ¶ 23.
{¶ 16} The Athens County charter petition is nearly indistinguishable...
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