State ex rel. Sanduskians for Sandusky v. The City of Sandusky, 2022-1103

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM.
Citation2022 Ohio 3362
PartiesThe State ex rel. Sanduskians for Sandusky et al. v. The City of Sandusky et al.
Docket Number2022-1103
Decision Date23 September 2022

2022-Ohio-3362

The State ex rel. Sanduskians for Sandusky et al.
v.
The City of Sandusky et al.

No. 2022-1103

Supreme Court of Ohio

September 23, 2022


Submitted September 19, 2022

In Mandamus.

Loretta Riddle, for relators.

Walter Haverfield, L.L.P., Benjamin Grant Chojnacki, and Lisa Mack; and Brendan Heil, Sandusky Law Director, for respondents City of Sandusky, Brendan Heil, Richard Brady, Dennis Murray, Blake Harris, Mike Meinzer, Steve Poggiali, Wes Poole, and Dave Waddington.

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PER CURIAM.

{¶ 1} Relators, Sanduskians for Sandusky and Craig McCloskey II, ask for a writ of mandamus ordering respondents-the city of Sandusky, Sandusky Law Director Brendan Heil, and Sandusky City Commission members Richard Brady, Dennis Murray, Blake Harris, Mike Meinzer, Steve Poggiali, Wes Poole, and Dave Waddington (collectively "city respondents")-to certify a charter-amendment petition for a vote by Sandusky's electors at the November 8, 2022 general election. Relators also ask for a writ of mandamus ordering respondent Erie County Board of Elections to place the proposed charter amendment on the November 8, 2022 general-election ballot. Finally, relators seek an award of attorney fees under R.C. 733.61 because McCloskey is a taxpayer who initiated this action as a taxpayer under R.C. 733.59 after Heil refused to do so.

{¶ 2} We grant a limited writ ordering the city-commission members to enact an ordinance providing for submission of the proposed charter amendment to Sandusky's electors at a special election to take place within the time parameters set forth in Section 82 of the Sandusky Charter and Article XVIII, Section 8 of the Ohio Constitution. This limited writ is conditioned on the Erie County Board of Elections certifying that the charter-amendment petition contains enough valid signatures to qualify for submission to the electors under Section 82 of the Sandusky Charter and Article XVIII, Section 9 of the Ohio Constitution. We deny relators' request for attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 3} On or about August 3, 2022, Sanduskians for Sandusky filed with the city a charter-amendment petition containing more than 600 signatures. The petition proposed to amend Section 25 of the city's charter. The full text of the proposed amendment was printed on each part-petition:

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Be it Ordained by the Electors of the City of Sandusky
An Amendment to Charter Section 25-Expenditures.
Amending Section 25 Paragraph 4 to read as follows:
Real property owned by the City, with the exception of existing or future park property owned by the City, may be sold or leased by the City with competitive bidding. Transparent negotiations for sale or lease of City property, by the City Manager, are required.
The City Manager and City Commission shall not approve the sale, lease or private development on existing or future park property, in whole or part thereof, including park property under lease during the circulating of this Charter Amendment process, without approval by a majority of the electors of the City voting on the question at a general election. This Charter Amendment shall take effect and be in force from and after the earliest date allowed by law.

Sandusky Charter, Section 25 currently states:

S 25 EXPENDITURES.
Until otherwise provided by the City Commission, the City Manager shall act as the purchasing agent for the City, by whom all purchases shall be made, and who shall approve all vouchers for the payment of the same. Such purchasing agent shall also conduct all sales of personal property which the City Commission may authorize to be sold as having become unnecessary or unfit for the City's use.
All purchases and sales shall conform to such regulations as the City may from time to time prescribe; but in either case, if an amount in excess of $1,000 is involved, competitive quotations shall
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be obtained. When it is anticipated an expenditure will exceed $10,000, formal competitive bidding shall be required; no such expenditure shall be split up for the sole purpose of evading this requirement.
When purchases or sales are made on joint accounts of separate departments, the purchasing agent shall apportion the charge or credit to each department. He or she shall see to the delivery of supplies to each department, and take, and retain the receipt of each department therefor.
Real property owned by the City may be sold or leased by the City without the need for competitive bids. Negotiations for the sale or lease of City property are permissible, where deemed appropriate by the City Manager, for the benefit of the City.
Competitive bidding shall not be required where the purchase consists of supplies, a replacement part or supplemental parts, or services for products, equipment or property owned or leased by the City and the only source of supply for such supplies, parts or services is limited to a single provider.
When an expenditure, other than the compensation of persons employed by the City, exceeds $10,000, such expenditure shall first be authorized and directed by ordinance or resolution of the City Commission, and no contract involving an expenditure in excess of such sum shall be made or awarded, except upon approval of the City Commission.

(Capitalization and underlining sic.)

{¶ 4} Upon receipt of the charter-amendment petition, city law director Heil determined that it did not include a full and correct copy of the title or text of

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Section 25 of the city charter. Heil further determined that the petition would be misleading to the city's electors if placed on the ballot because it offers no guidance on what, if any, portions of existing Section 25 would be repealed or replaced.

{¶ 5} On August 8, the city commission discussed the petition at its regularly scheduled meeting.[1] Heil advised the commission that the petition did not satisfy the requirements of Ohio law. The commission did not certify the petition to the Erie County Board of Elections for placement on the general-election ballot.

{¶ 6} Despite his advice to the commission, Heil forwarded the petition to the board of elections solely for verification of signatures. The board of elections verified that the petition contains 466 valid signatures, which relators say is enough to qualify the proposed charter amendment for placement on the ballot.

{¶ 7} On August 24, McCloskey delivered a letter to Heil, requesting under R.C. 733.58 and 733.59 that Heil commence a mandamus action to compel the city commissioners to enact an ordinance to place the proposed charter amendment on the November 8 ballot.[2] Heil informed McCloskey's counsel that he would not initiate a mandamus action against the city commission.

{¶ 8} Relators commenced this expedited election action on September 8. They ask this court to issue a writ of mandamus (1) ordering city respondents to "forthwith certify" the charter-amendment petition so that the proposed amendment can be submitted to the electors of the city and (2) ordering the board of elections to place the proposed charter amendment on the November 8 general-election ballot. Relators also demand an award of attorney fees under R.C. 733.61. We set

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a schedule for submission of evidence and merit briefs that was more accelerated than the schedule set forth in S.Ct.Prac.R. 12.08. ___ Ohio St.3d ___, 2022-Ohio-3153, ___ N.E.3d___ . Relators and city respondents submitted evidence and merit briefs; the board of elections filed a notice of appearance of counsel but filed neither an answer to the complaint nor a merit brief. City respondents have also filed a motion to strike portions of relators' reply brief.

II. OVERVIEW OF THE CHARTER-AMENDMENT PROCESS

{¶ 9} As authorized by Article XVIII, Section 7 of the Ohio Constitution, Sandusky has adopted a charter to govern the exercise of local self-government powers. Article XVIII, Section 9, which governs the charter-amendment process, provides:

Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission of proposed amendments to the electors shall be governed by the requirements of section 8 as to the submission of the question of choosing a charter commission; and copies of proposed amendments may be mailed to the electors as hereinbefore provided for copies of a proposed charter, or pursuant to laws passed by the general assembly, notice of proposed amendments may be given by newspaper advertising. If any such amendment is approved by a majority of the electors voting thereon, it shall become a part of the charter of the municipality. A copy of said charter or any amendment thereto shall be certified to the
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secretary of state, within thirty days after adoption by a referendum vote.

{¶ 10} If a petition proposing a charter amendment contains enough valid signatures, the municipal legislature "must 'forthwith' provide by ordinance for the submission of the proposed amendment to the electors." State ex rel. Commt. for Charter Amendment Petition v. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 3-4, quoting Article XVIII, Section 8, Ohio Constitution. And under Article XVIII, Section 8 of the Ohio Constitution, "[t]he ordinance must require that the matter be submitted at the next regular municipal election if one will occur no more than 120 days, and no less than 60 days, after passage of the ordinance." Maple Hts. at ¶ 5. If there is no election within that time frame, the municipal legislature must submit the question to the electors at a...

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