State ex rel. Rose v. Lorain Cty. Bd. of Elections

• Decision Date: 05 October 2000
• Docket Number: No. 00-1593.,00-1593.
• Parties: THE STATE EX REL. ROSE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS ET AL.
• Court: Ohio Supreme Court

90 Ohio St.3d 229

736 NE 2d 886

THE STATE EX REL. ROSE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS ET AL.

No. 00-1593.

Supreme Court of Ohio.

Submitted September 26, 2000.

Decided October 5, 2000.

Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondents.

LUNDBERG STRATTON, J.

Relators assert that they are entitled to the requested extraordinary relief in mandamus to compel the board of elections and the township to place the referendum issue on the November 7 election ballot. Relators contend that the board of elections abused its discretion and disregarded applicable law by refusing to place the referendum issue on the November 7 election ballot. According to relators, Rose had a common-law right to withdraw his first and second petitions and resubmit them as one petition.

We are cognizant that "[t]he 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." Section If, Article II of the Ohio Constitution. Moreover, "`"[p]rovisions for municipal initiative or referendum should be liberally construed in favor of the power reserved so as to permit rather than preclude the exercise of such power, and the object sought to be attained should be promoted rather than prevented or obstructed."'" Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 40, 671 N.E.2d 1, 5, quoting State ex rel. King v. Portsmouth (1986), 27 Ohio St.3d 1, 4, 27 OBR 73, 75, 497 N.E.2d 1126, 1128, quoting State ex rel. Sharpe v. Hitt (1951), 155 Ohio St. 529, 535, 44 O.O. 489, 491, 99 N.E.2d 659, 662.

R.C. 519.12(H) requires that each referendum petition on a zoning resolution amendment adopted by a board of township trustees "[i]n addition to meeting the requirements of this section, * * * shall be governed by the rules specified in section 3501.38 of the Revised Code." (Emphasis added.) See, also, Markus v. Trumbull Cty. Bd. of Elections (1970), 22 Ohio St.2d 197, 199, 51 O.O.2d 277, 279, 259 N.E.2d 501, 502. The board of elections determined that R.C. 3501.38 prohibited relators from filing any petition besides Rose's first petition.

In construing R.C. 3501.38, our paramount concern is the legislative intent in enacting the statute. In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 265, 725 N.E.2d 271, 277. We must first review the statutory language. Words and phrases used shall be read in context and construed according to the rules of grammar and common usage. State ex rel. Antonucci v. Youngstown City School Dist. Bd. of Edn. (2000), 87 Ohio St.3d 564, 565, 722 N.E.2d 69, 71; R.C. 1.42.

R.C. 3501.38 provides:

"All * * * petitions presented to or filed with * * * a board of elections * * * for the holding of an election on any issue shall, in addition to meeting the other specific requirements prescribed in the sections of the Revised Code relating thereto, be governed by the following rules:

"* * *

"(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office.

"* * *

"(K) All separate petition papers shall be filed at the same time, as one instrument." (Emphasis added.)

Respondents contend that R.C. 3501.38(I) and (K) prohibit the withdrawal and refiling of the petitions as the refiling constitutes an amendment. Therefore, we must reexamine R.C. 3501.38(I) and (K).

R.C. 3501.38(I)

R.C. 3501.38(I), read literally, makes eminent sense. A voter should have confidence that the petition he or she signed reflects all of the information and only the information assented to by the signatory. In this provision, the General Assembly ensures that what the voter signed is what is filed. Thus, under R.C. 3501.38(I), it would not be proper for the petitioner to withdraw the petition, change a date, and then resubmit the same petition. See State ex rel. Clinard v. Greene Cty. Bd. of Elections (1990), 51 Ohio St.3d 87, 554 N.E.2d 895. This would defeat the purpose of the R.C. 3501.38(I) requirement that petitions, once filed, not be altered. However, nowhere in R.C. 3501.38(I) does the language of the statute prohibit withdrawal of a petition.

In this case, the petitioner did not alter the petitions in any way. He simply refiled the same petitions that had been previously signed by the voters. Therefore, since the petitioner only withdrew and refiled the petitions without alteration, we conclude that R.C. 3501.38(I) does not prohibit what occurred in this case.¹ The mere withdrawal of the petitions is not an alteration, correction, or addition to the petitions. While an alteration, correction, or addition would involve some sort of physical change to the petitions, a withdrawal merely involves the removal of the petitions from the public office in which they were filed. After the withdrawal of the petitions, there is nothing before the public office and, therefore, there is nothing to be acted upon. Rose may even be permitted to withdraw and discard previously filed petitions, and then refile a new petition before the filing deadline, because a new petition with fresh signatures ensures the integrity of the contents of the petition.

Accordingly, since R.C. 3501.38(I) expressly deals only with alterations, corrections, and additions to petitions filed and in the possession of the public office, but contains no express provision prohibiting the withdrawal of the petitions, we therefore hold that R.C. 3501.38(I) does not prohibit the withdrawal and refiling of Rose's combined petitions.

R.C. 3501.38(K)

Respondents also claim that R.C. 3501.38(K) bars the filing of the two previously withdrawn and now combined petitions. The respondents contend that the petition, once filed, may not be withdrawn and refiled, for to do so would constitute an amendment. However, upon carefully examining the statute, we conclude that R.C. 3501.38(K) does not expressly prohibit the withdrawal and refiling of a petition.

The respondents rely on our holdings in at least three prior cases that appear to prohibit withdrawal and refiling of petitions. First, in State ex rel. Weaver v. Wiethe (1965), 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, a candidate for city council filed a nominating petition consisting of several separate petition papers containing an insufficient number of valid signatures. After the board of elections took action on his petition and notified the candidate of the insufficiency, he attempted to withdraw his nominating petition to obtain additional valid signatures on additional petition papers and to refile at a later time. We held that the city charter, which read much like R.C. 3501.38(K), precluded the candidate from withdrawing his petition papers or filing additional papers. Id. at 3, 33 O.O.2d at 2, 210 N.E.2d at 882. Moreover, we concluded that R.C. 3501.38(I) prohibited adding to a petition after it is filed in a public office. Id.

Second, in State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879, a candidate filed several part-petitions and then later, upon learning that he had not filed his master form, filed that form on a later date. It is unclear whether the candidate attempted to withdraw his first set of petitions. However, either way, he was barred when he attempted to file his master form. We held that this attempted filing violated R.C. 3513.05, which is analogous to the "one instrument" provision of R.C. 3501.38(K).

Finally, in State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio St.3d 186, 602 N.E.2d 631, a candidate for county court judge submitted a petition containing insufficient valid signatures on July 2, 1992. Upon learning of the deficiency, the candidate filed additional petition papers with sufficient valid signatures on August 4, 1992. The board of elections accepted the second filing. We granted a writ of prohibition and ordered the board of elections to remove the candidate's name from the ballot. Under R.C. 3513.05, both the master form and all separate petition papers must be filed at the same time as one instrument. We held that "[u]nder this authority, a candidate may file only one declaration of candidacy and set of petition papers as one instrument with the board of elections." Id. at 189, 602 N.E.2d at 633.

We agree that a candidate may file only one instrument. However, we find that Weaver is inconsistent with the intent of the General Assembly in R.C. 3501.38(I) and (K). Accordingly, we overrule Weaver and its progeny. Despite our prior interpretation of R.C. 3501.38(I) and (K), we now hold that there is no express language in either R.C. 3501.38(I) or (K) prohibiting the withdrawal of a petition. Therefore, we conclude that neither R.C. 3501.38(I) nor 3501.38(K) expressly prohibits the action taken in this case, namely, the withdrawal of petitions previously filed and the refiling of those combined and unaltered petitions. Accordingly, to the extent that our prior case law holds otherwise, we clarify today that neither R.C. 3501.38(I) nor (K) prohibits the withdrawal of previously filed petitions, combining those petitions, and then refiling them as one unaltered instrument. We recognize the maze of technical requirements through which candidates and petitioners must travel in order to comply with filing requirements. Thus when a candidate or petitioner files a petition and then learns before the filing deadline that the petition has some deficiency, the process is benefited, rather than harmed, by permitting the petitioner the opportunity to cure the defect by withdrawing the petition and filing a newly signed petition. Our...