State ex rel. Meigs Cnty. Home Rule Comm. v. Cnty. of Meigs Bd. of Comm'rs
| Decision Date | 09 September 2015 |
| Docket Number | No. 15CA9.,15CA9. |
| Citation | 44 N.E.3d 950 |
| Parties | STATE of Ohio, ex rel. MEIGS COUNTY HOME RULE COMMITTEE, by its members, Paul K. Strauss, et al., Relators, v. COUNTY of MEIGS BOARD OF COMMISSIONERS, Michael Bartrum, et al., Respondents. |
| Court | Ohio Court of Appeals |
James Kinsman, Cincinnati, Ohio and Terry J. Lodge, Toledo, OH, for Relators.
Colleen Williams, Meigs County Prosecuting Attorney and Jeremy Fisher, Meigs County Assistant Prosecuting Attorney, Pomeroy, OH, for Respondents.
HARSHA
, J.
{¶ 1} The Relator Meigs County Home Rule Committee filed a petition for writ of mandamus seeking to compel the Meigs County Board of Commissioners to certify a petition for an adoption of a county charter to the Meigs County Board of Elections pursuant to R.C. 307.94
. The Committee alleges that it complied with R.C. 307.94, which governs the procedures for submitting the question of the adoption of a county charter to the electors of the county at the next general election. According to the petition, the Committee filed the petition with the Meigs County Board of Election and the Board of Elections determined that the petition and the signatures on the petition met the requirements of law. The Committee alleges that the Board of Elections properly certified the petition to the Board of Commissioners, but that the Board of Commissioners failed to comply with its legal obligation to certify the petition to the Board of Elections for submission to the electors of the county as required in the second paragraph of R.C. 307.94. The Committee seeks a writ of mandamus to compel the Meigs County Board of Commissioners to certify the petition to the Meigs County Board of Elections.
{¶ 2} The Committee filed a motion for summary judgment in support of their petition and sought expedited relief. The Board of Commissioners filed an answer, a response to the Committee's motion, and its own motion for summary judgment. The Commissioners argue that because the Board of Elections did not certify whether the petition was valid and there were sufficient valid signatures not later than 120 days before general election, the Commissioners had no statutory duty to certify the petition to the Board of Elections.
{¶ 3} The Commissioners also filed a supplemental response in which it argued that the Committee's petition is invalid because the Ohio Secretary of State has recently reviewed the substantive content of the proposed county charters attached to similar petitions in three other counties and determined that the petitions in those counties are invalid. Alternatively, the Commissioners ask us to stay the action pending any appeal from the Ohio Secretary of State's determination.
requires the Board of Elections to make two separate and distinct determinations and certify these findings to the Board of Commissioners not later than 120 days before the day of the general election: (1) whether the petition is valid or invalid and (2) whether there are sufficient valid signatures. Here, we find that the Board of Elections timely certified that there were sufficient valid signatures in accordance with R.C. 307.94, but failed to certify whether the petition itself was valid until after the 120–day deadline. The Board of Commissioners has no clear legal duty to certify the petition to the Board of Elections until it receives a timely certification both that the petition is valid and that there are sufficient valid signatures. Therefore, the Commissioners have no clear legal duty to certify the petition, by resolution, to the Board of Elections and the Committee is not entitled to the extraordinary judicial remedy of mandamus.
{¶ 5} Moreover, our determination of this mandamus action does not require that we examine the petition or the substantive content of the attached charter. We are not making any determination concerning the validity or invalidity of either the petition or the signatures on the petition, nor are we making any determination as to the constitutionality or legality of the contents of the proposed county charter. Rather, to determine whether the Committee is entitled to a writ of mandamus, we review only the procedural requirements of R.C. 307.94
to determine if the Meigs County Board of Commissioner's non-discretionary duty to “forthwith ... by resolution, certify the petition to the board of elections for submission to the electors” was triggered by the Board of Election.
{¶ 6} Thus, we DENY the Committee's motion for summary judgment, GRANT the Commissioners' motion for summary judgment, DENY the Commissioners' motion for stay, DENY the writ, and DISMISS the petition for a writ of mandamus.
{¶ 7} Summary judgment motions are governed by the standards of Civ.R. 56
. Summary judgment is appropriate if the party moving for summary judgment establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and (3) the moving party is entitled to judgment as a matter of law. Civ.R. 56 ; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24 ; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, 2014 WL 3940314, ¶ 26.
{¶ 8} The moving party has the initial burden of informing the trial court of the basis for the motion by pointing to summary judgment evidence and identifying the parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996)
Once the moving party meets this initial burden, the nonmoving party has the reciprocal burden under Civ.R. 56(E)
to set forth specific facts showing that there is a genuine issue remaining for trial. Dresher at 293, 662 N.E.2d 264.
{¶ 9} Mandamus actions are governed by Ohio Revised Code Chapter 2731. A mandamus is a writ to enforce performance of a specific act by a public official or agency and will only be issued where there is a clear legal duty to act. A writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of law. See R.C. 2731.05
. In order for the court to grant a writ of mandamus, the relator must show that: (1) the relator has a clear legal right to the relief prayed for; (2) respondent is under a clear legal duty to perform the acts; and (3) relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12 ; State ex rel. Lewis v. Bd. of Cty. Commrs. of Jackson Cty., 4th Dist. Jackson App. No. 98CA830, 2002-Ohio-1424, 2002 WL 1677453 ; Conley v. Corr. Reception Ctr., 141 Ohio App.3d 412, 415, 751 N.E.2d 528, 530 (4th Dist.2001). The relator must prove these requirements by clear and convincing evidence. See
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 13, quoting State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus (“ ‘Relators in mandamus cases must prove their entitlement to the writ by clear and convincing evidence’ ”). Because of the proximity of the November 3, 2015 election, the Committee has established that it lacks an adequate remedy in the ordinary course of the law. Taxpayers for Westerville Schools at ¶ 12; State ex rel. Orange Twp. Bd. of Trustees v. Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 164, 2013-Ohio-36, 985 N.E.2d 441, 444, ¶ 14 (2013).
{¶ 10} The Commissioners argue that the mandamus petition is barred because the Committee failed to exhaust its legal remedies when it failed to file suit in the Meigs County Common Pleas Court in accordance with the procedure provided in R.C. 307.94
. However, that procedure governs committee protests where a board of elections has found the petition to be invalid or to have insufficient valid signatures:
If the petition is certified by the board of elections to be invalid or to have insufficient valid signatures, or both, the petitioners' committee may protest such findings or solicit additional signatures as provided in section 307.95 of the Revised Code
, or both, or request that the board of elections proceed to establish the validity or invalidity of the petition and the sufficiency or insufficiency of the signatures in an action before the court of common pleas in the county.
(Emphasis added) R.C. 307.94
. Because the Board of Elections did not address the petition's validity or invalidity, there was no express finding of invalidity here and the protest procedure available to the Committee is not applicable. Thus, we find no requirement that the Committee ask the Meigs County Board of Election file an action in the Meigs County Court of Common Pleas prior to filing this mandamus petition.
{¶ 11} The dispute between the Committee and the Commissioners involves whether the Commissioners have a clear legal duty to certify the petition to the Board of Elections under R.C. 307.94
, the statutory provision which governs the adoption of a county charter. The right of the people of any county to adopt a charter is provided for in the Ohio Constitution, Article X, Section 3
. The procedure for placing a county charter question before the electors is governed by R.C. 307.94. Under this section, electors of a county may file a petition asking that the question of the adoption of a county charter be submitted to the electors of the county. The petitioners are required to designate in the petition a committee of three to five persons who will represent them in matters relating to the petition. The Relator, Meigs County Home Rule Committee, is the designated committee and consists of the following five members: Paul K. Strauss, Gregory D. Howard, Dennis Jay...
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