State ex rel. N. Main St. Coalition v. Webb, 2005 Ohio 5009 (OH 9/26/2005)
| Decision Date | 26 September 2005 |
| Docket Number | No. 2005-1616.,2005-1616. |
| Citation | ___ Ohio St.3d ___,2005 Ohio 5009 |
| Parties | The State ex rel. North Main Street Coalition et al. v. Webb, Village Clerk. |
| Court | Ohio Supreme Court |
Baumgartner & O'Toole and Stephen P. Bond, Wellington Village Solicitor, for respondent.
{¶ 1}
This is an expedited election case in which initiative petitioners seek a writ of mandamus to compel a village clerk to certify the sufficiency and validity of the petition to the board of elections for placement of a proposed ordinance on the November 8, 2005 election ballot.
{¶ 2} In 2000, the Ohio Department of Transportation ("ODOT") announced a $200 million, ten-year rail-crossing-safety initiative to "provide railroad grade separations to communities most affected by increased train traffic as a result of the recent acquisition of Conrail by the Norfolk Southern Corporation and CSX Transportation." The Council of the village of Wellington, Ohio, enacted Resolution 2000-02, which requested that the Ohio Rail Development Commission fund a feasibility study to determine the possibility and plausibility of a grade separation within the village.
{¶ 3} In 2001, ODOT retained an engineering company to design a railroad underpass to be constructed along State Route 58 in Wellington.
{¶ 4} On December 17, 2001, the Wellington Village Council passed Resolution No. 2001-62, an emergency measure for the village to "contribute up to 5% of the project cost for a grade separation to be constructed on SR-58." The resolution specified that the village is located on a CSX Transportation railroad line, that the line bisects the village on a diagonal that contains at-grade crossings on state highways S.R. 18 and S.R. 58, that a grade separation would enhance the safety of the crossings and the health, safety, and welfare of the community, and that ODOT had conducted a study to determine the feasibility of a grade separation at S.R. 58. At present, ODOT is considering only the S.R. 58 site for the construction of a new railroad grade separation in Wellington. ODOT has not, however, made a final decision.
{¶ 5} Relator North Main Street Coalition ("North Main") is a committee designated to circulate initiative petitions. North Main is composed of relators Helen Dronsfield, James Farago, Helen Wiggs, and Mary Lou Rapp, who are Wellington taxpayers and residents.
{¶ 6} North Main circulated an initiative petition proposing an ordinance to repeal Resolution No. 2001-62, which it refers to as the "Rt. 58 Underpass Project." According to North Main, the Rt. 58 Underpass Project "would cause destruction and damage to the historical nature of downtown Wellington and would result in the loss of and damage to residential properties." Election officials certified the proposed ordinance for placement on the November 8, 2005 election ballot.
{¶ 7} In conjunction with its initiative petition to repeal Resolution No. 2001-62, North Main also circulated a separate initiative petition. The petition proposes an ordinance to approve a different location for the grade-separation project. It proposes an overpass bridge in the Maple Street Industrial Park area and a village contribution of up to five percent of the project cost:
{¶ 8} "Section 1: That based upon the facts that the grade separation project, known as the overpass bridge at the Maple St. Industrial Park area, would not cause destruction and damage to the historical nature of downtown Wellington, would not result in the loss of and damage to residential properties, would have cost savings, and would provide an alternative eastern traffic bypass for downtown traffic, the location for the grade separation project to be constructed, known as the overpass bridge at the Maple St. Industrial Park area, and the contribution of up to 5% of the project cost for the grade separation project is hereby approved."
{¶ 9} Although the petition did not specify North Main as the committee filing or circulating the petition, it listed the North Main members, relators Farago, Dronsfield, Wiggs, and Rapp as the committee. On July 8, 2005, before circulating the petition, North Main filed a certified copy of the proposed ordinance with respondent, Village Clerk Karen Webb. In correspondence accompanying the proposed ordinance, North Main referred to itself as the "Committee for the Overpass Bridge Maple St. Industrial Park Project."
{¶ 10} On July 28, 2005, North Main filed in Webb's office the initiative petition for the proposed ordinance on the Maple Street Overpass Bridge Project. The petition contained 179 signatures. North Main again referred to itself as the Committee for the Overpass Bridge Maple St. Industrial Park Project. North Main further advised Webb of her duties under R.C. 731.28, including that she certify the sufficiency and validity of the petition to the Lorain County Board of Elections by August 25, 2005 to assure placement of the initiative on the November 8, 2005 election ballot.
{¶ 11} On August 8, 2005, Webb submitted the petition to the board to determine the number of valid signatures. On August 9, the board determined that the petition contained 170 valid signatures, which was sufficient to place the initiative on the November 8 election ballot. The board advised Webb:
{¶ 12} "It has been found that there are enough valid signatures for you to certify the sufficiency and validity of said petitions and return them to us before the August 25th filing deadline in order for this issue to be placed on the ballot for the November 8th, 2005 general election."
{¶ 13} On August 16, 2005, Webb asked Kenneth Wright, the ODOT Planning Administrator for District 3, to verify that ODOT did not have a pending or approved grade-separation project involving an overpass bridge in the Maple Street Industrial Park area. Wright responded that ODOT had no Maple Street project and that the Maple Street location had been "eliminated early in the process." Nevertheless, Wright and another ODOT official have also stated that ODOT would consider and investigate alternatives to a S.R. 58 underpass, including a Maple Street overpass bridge. In Wright's words, "If there is support for another location, ODOT will look at it."
{¶ 14} After her correspondence with Wright, Webb questioned whether the ordinance proposed by relators was legally sufficient or valid. On August 19, 2005, Village Solicitor Stephen Bond filed suit on behalf of Webb in the Lorain County Court of Common Pleas. In the complaint, Webb requests a declaratory judgment that (1) the ordinance proposed by relators' initiative petition to approve a grade-separation project in the Maple Street Industrial Park area is not legally sufficient and is not valid and (2) Webb has the discretion to determine that the proposed ordinance is not sufficient and is invalid, and therefore she is not required to certify the petition to the board of elections. Webb did not specify in the complaint that she promised to abide by the common pleas court's ruling.
{¶ 15} Webb's declaratory-judgment complaint named relator Farago, the board of elections, and ODOT as defendants, but did not name North Main1 or any of its members besides Farago as parties. Farago did not receive service of summons and a copy of the complaint. On the same date that the complaint was filed, however, Bond notified North Main's counsel of the filing and mailed a courtesy copy of the complaint.
{¶ 16} On August 23, 2005, Webb advised North Main that she would not certify the initiative petition to the board of elections. On that date, North Main and its members demanded that Bond immediately bring an action to compel Webb to certify the petition to the board of elections by August 25. Bond rejected the demand, explaining that he had already commenced the declaratory-judgment action on behalf of Webb, Webb had discretion to determine the sufficiency and validity of the petition, and the common pleas court could determine that the petition was insufficient or invalid.
{¶ 17} On August 30, relators, North Main and its members, filed this expedited election action for a writ of mandamus to compel Webb to certify the sufficiency and validity of the initiative petition and to place the proposed ordinance regarding the Maple Street Overpass Bridge Project on the November 8, 2005 election ballot. Webb responded by filing an answer and a motion to dismiss, and the parties submitted evidence and briefs pursuant to the accelerated schedule in S.Ct.Prac.R. X(9).
{¶ 18} This cause is now before the court for a consideration of the merits.
{¶ 19} We deny Webb's motion to dismiss. Because Webb's motion was filed at the same time as her answer, her belated Civ.R. 12(B)(6) motion is actually a motion for judgment on the pleadings. See, e.g., State ex rel. Holloman v. Phillips, 100 Ohio St.3d 70, 2003-Ohio-5063, 796 N.E.2d 524, fn. 3; Carcorp, Inc. v. Chesrown Oldsmobile-GMC Truck, Inc., 159 Ohio App.3d 87, 2004-Ohio5-946, 823 N.E.2d 34, ¶ 10.
{¶ 20} Motions to dismiss and for judgment on the pleadings are inappropriate in expedited election cases because "[u]nder S.Ct.Prac.R. X(9), the presentation of evidence and briefs on the merits * * * is provided in lieu of a S.Ct.Prac.R. X(5) dismissal determination, making procedural motions normally inapplicable." See State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 111, 712 N.E.2d 696; State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 20.
{¶ 21} Therefore, we deny Webb's motion to dismiss. Nevertheless, we will consider her arguments in our consideration of the merits.
{¶ 22} North Main and its members request a writ of mandamus to compel Webb to certify the sufficiency and validity of the initiative petition to the board of elections for...
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