State ex rel. Pennington v. Bivens
| Decision Date | 13 September 2021 |
| Docket Number | 2021-1030 |
| Citation | 166 Ohio St.3d 241,185 N.E.3d 41 |
| Parties | [The STATE EX REL.] PENNINGTON et al. v. BIVENS, City Atty., et al. |
| Court | Ohio Supreme Court |
Shane W. Ewald, L.L.C., and Shane W. Ewald, Gahanna; and The Law Office of Tricia A. Sprankle and Tricia A. Sprankle, Gahanna, for relators.
McTigue & Colombo, L.L.C., Donald J. McTigue, Columbus, J. Corey Colombo, and Derek S. Clinger, Columbus, for respondents.
Kennedy, J. {¶ 1} In this expedited election case, relators, Lana Pennington, Holly Pennington, Cynthia McIntire, Lisa Cotterman, and Anna Miller, the five members of a petition committee (collectively, "petitioners"), seek a writ of mandamus ordering respondent Whitehall City Attorney Michael T. Bivens or respondent Whitehall City Council to certify the sufficiency of a referendum petition for the rejection or approval of a zoning ordinance in the city of Whitehall. Petitioners also seek to compel the city council to submit the petition to Whitehall's electors at the November 2, 2021 general election.
{¶ 2} R.C. 731.41 states that the procedures for circulating a referendum or initiative petition provided in R.C. 731.28 through 731.41 do not apply to a municipality, such as the city of Whitehall, that has "adopt[ed] its own charter containing an initiative and referendum provision for its own ordinances and other legislative measures." Therefore, Bivens abused his discretion in rejecting a referendum petition on the ground that the petitioners failed to comply with R.C. 731.32 ’s requirement to submit a certified copy of the zoning ordinance to the city auditor before circulating their petition. We also decline to apply the equitable defense of laches. There is no equity in denying the preeminent constitutional right of referendum when respondents have not asserted any actual, material prejudice from the delay.
{¶ 3} For these reasons, we grant a writ of mandamus to compel Bivens to certify the sufficiency of the petition to the clerk of the Whitehall City Council forthwith so that the council may refer the zoning amendment to the electors at the November 2, 2021 general election. However, we deny petitioners’ request for attorney fees.
Facts and Procedural History
{¶ 4} On June 16, 2021, Whitehall's mayor signed an ordinance changing the zoning classification of several parcels from "R-3 Residential District" and "General Commerce District" to "A-2 Apartment District." On June 24, petitioners filed an uncirculated referendum petition along with a certified copy of the ordinance with Bivens, the city attorney. However, the certified copy of the ordinance, which petitioners had obtained from the clerk of the city council, did not include the ordinance's exhibits.
{¶ 5} On July 1, after gathering signatures, petitioners filed the petition with Bivens. He then delivered the petition to the Franklin County Board of Elections, which certified that the petition contained a sufficient number of valid signatures.
{¶ 6} On July 10, Bivens informed petitioners that the petition was insufficient because it did not contain the full ordinance, which he said was required under Section 15(a) of the Whitehall City Charter. See Whitehall City Charter, Section 15(a) (); Whitehall City Charter, Section 16(b) (). He also told petitioners that they had "failed to file a full-certified copy of the ordinance prior to circulation as required by Ohio Revised Code 731.32." That statute provides that "[w]hoever * * * files a referendum petition against any ordinance or measure shall, before circulating such petition, file a certified copy of the proposed ordinance or measure with the city auditor. " (Emphasis added.) R.C. 731.32. Bivens notified petitioners that the city charter provides for a limited right to file an amended petition within ten days. See Whitehall City Charter, Sections 15(d) and 16(b).
{¶ 7} On July 15, petitioners filed a copy of an uncirculated amended petition along with a certified copy of the ordinance (this time including its exhibits) with Bivens, and on July 19 they filed the circulated amended petition with him. Bivens sent the amended petition to the board of elections, which found that it contained a sufficient number of valid signatures.
{¶ 8} Nine days later, on July 28, Bivens notified petitioners that the amended petition was insufficient because they had not complied with R.C. 731.32. On August 11, petitioner Lana Pennington e-mailed Bivens asking him to clarify his basis for rejecting the petition. Bivens replied, explaining that in his July 10 and July 28 letters to petitioners, he had
{¶ 9} On August 18, petitioners filed this original action seeking to compel Bivens or the city council to certify the sufficiency of the petition and to compel the city council to submit the measure to the electors at the November 2, 2021 general election. Petitioners maintain that they were not required to file a certified copy of the ordinance with the city auditor before circulating the petition, because Section 14 of the city charter provides that "[a]ll petitions required in the initiative or referendum of ordinances and resolutions shall be filed with the City Attorney."
Law and Analysis
Mandamus
{¶ 10} To be entitled to a writ of mandamus, a petitioner must establish a clear legal right to the requested relief, a clear legal duty on the part of a respondent to grant the relief, and the lack of an adequate remedy in the ordinary course of the law. See State ex rel. Commt. for Charter Amendment Petition v. Maple Hts. , 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 17. Respondents do not dispute that the proximity of the November election precludes an adequate remedy at law. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections , 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18. To prevail, petitioners must show that Bivens abused his discretion in finding that the petition was insufficient. State ex rel. Sinay v. Sodders , 80 Ohio St.3d 224, 232, 685 N.E.2d 754 (1997).
{¶ 11} Article II, Section 1f of the Ohio Constitution states, "The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law." We have described Article II, Section 1f as "a delegation of power to the Legislature to provide how the initiative and referendum powers that were reserved to the people of each municipality may be applied." Youngstown v. Craver , 127 Ohio St. 195, 202-203, 187 N.E. 715 (1933). In addition, we have recognized that "charter ‘law’ under the ‘homerule’ provisions of the Constitution" may also provide for the exercise of the rights to initiative and referendum. State ex rel. Bramblette v. Yordy , 24 Ohio St.2d 147, 149, 265 N.E.2d 273 (1970). In the event of a conflict with state law, the charter prevails on matters of local self-government, including the administration of local elections. Article XVIII, Section 3, Ohio Constitution ; State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections , 62 Ohio St.3d 17, 19, 577 N.E.2d 645 (1991).
{¶ 12} The General Assembly has provided a default procedure for exercising the rights of initiative and referendum in enacting R.C. 731.28 et seq. These statutes include R.C. 731.32, which states that "[w]hoever * * * files a referendum petition against any ordinance or measure shall, before circulating such petition, file a certified copy of the proposed ordinance or measure with the city auditor or the village clerk." But the General Assembly also provided that " Sections 731.28 to 731.41, inclusive, of the Revised Code do not apply to any municipal corporation which adopts its own charter containing an initiative and referendum provision for its own ordinances and other legislative measures." (Emphasis added.) R.C. 731.41.
{¶ 13} Whitehall's city charter contains an initiative and referendum provision. See Whitehall City Charter, Section 15 (initiative petitions) and Section 16 (referendum petitions). Therefore, by the express terms of R.C. 731.41, the precirculation filing requirement imposed by R.C. 731.32 does not apply to the referendum petition submitted in this case.
{¶ 14} Respondents maintain that the Whitehall charter incorporates R.C. 731.32 by reference through Section 79 of the charter, which provides that "[a]ll general laws of the State applicable to municipal corporations, now or hereafter enacted and which are not in conflict with the provisions of this Charter, or with ordinances or resolutions hereafter enacted by City Council, shall be applicable to this City." They point out that "the Whitehall City Charter is silent with respect to precirculation requirements," and "[i]n interpreting municipal charters that are similarly silent with respect to precirculation requirements though also contain provisions that incorporate all non-conflicting state laws, this Court has repeatedly held that R.C. 731.32 applies to such municipalities."
{¶ 15} We acknowledge that we have said that R.C. 731.32 does not conflict with a municipality's initiative and referendum provision when the charter incorporates general law by reference and does not impose (i.e., is silent regarding) any precirculation requirement. E.g., State ex rel. Columbus Coalition for Responsive...
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