State ex rel. Schultz v. Cuyahoga County Bd. of Elections

• Citation: 50 Ohio App.2d 1,4 O.O.3d 1,361 N.E.2d 477
• Parties: , 4 O.O.3d 1 The STATE ex rel. SCHULTZ, et al., v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al. *
• Decision Date: 09 March 1976
• Court: United States Court of Appeals (Ohio)

Page 1

50 Ohio App.2d 1

361 N.E.2d 477, 4 O.O.3d 1

The STATE ex rel. SCHULTZ, et al., v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 9, 1976.

Syllabus by the Court

1. A party seeking a writ of mandamus assumes the burden of establishing that he has a clear right to the relief sought and that the party against whom the writ is directed has a clear duty to act, but has failed to do so.

2. Under R.C. 3501.11 county boards of elections are under a duty to scrutinize referendum petitions to determine their sufficiency and validity prior to placing a referendum issue upon the ballot.

3. The requirements for referendum petitions under R.C. 519.12 are:

(a) The petition must contain the number and a full and correct title of the zoning resolution;

(b) The petition must contain the affidavit of the person soliciting signatures for the petition certifying that to the best of his or her knowledge and brlief each of the signatures is that of the person whose name it purports to be, that he believes such persons are electors of the township, and that such persons signed the petition with knowledge of its contents; and

(c) If the petition contains any additional information it must be of such a character as to promote the attempt to fairly and accurately present the question or issue and must not in any way detract from a free, intelligent and informed choice by the average citizen who is requested to make a decision as to whether he should or should not sign such a petition.

Where failure to comply with any one of the requirements mandated by R.C. 519.12 is demonstrated on the face of the referendum petition, the relator fails to meet his burden of establishing a clear right to the relief sought and consequently, a writ of mandamus will not lie. Arthur L. Cain, Cleveland, for relators.

John T. Corrigan, Pros. Atty., Cleveland, and John L. Dowling, Lakewood, for respondent.

JACKSON, Judge.

By Resolution No. 5-75, adopted on February 15, 1975, the Olmsted Township Board of Trustees certified to the Cuyahoga County Board of Elections petitions seeking a referendum upon a proposed amendment to the zoning plan of Olmsted Township, and requested that the Board of Elections place the same upon the ballot at the next election. The Board of Elections refused to place the issue upon the ballot upon the grounds that the petitions circulated for signature stated the nature of the proposed amendment in such a way as to be misleading to those who were asked to place their signatures upon the petitions.

On December 3, 1975, the relators filed an original action in this court seeking a writ of mandamus which would compel the Board of Elections to place the issue upon the ballot at the next election.

As provided by statute, a mandamus is:

'* * * a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.' R.C. 2731.01.

It has generally been said that the issuance of a writ of mandamus is authorized when there is no adequate remedy at law and where there is a clear right to have the act performed. E. g., State ex rel. River Grove Park, Inc. v. City of Kettering (1962), 118 Ohio App. 143, 146, 193 N.E.2d 547. With respect to the latter requirement, this court has recently held:

' A party seeking a writ of mandamus assumes the burden of establishing that he has a clear right to the relief sought and that the party against whom the writ is directed has a clear duty to act, but has failed to do so.' State ex rel. Ardco, Inc. v. Cuyahoga County Board of Elections (Cuyahoga County Court of Appeals, April 10, 1975), Case No. 33943, at 3-4.

There is no question in the instant case that if the allegations of the relators' claim are substantively correct, they are without a remedy in the normal course of law and mandamus would be a proper remedy. Therefore, the issues before this court are two-fold:

(1) Is the Board of Elections required to place upon the ballot all referendum issues certified to it without regard to the sufficiency or validity of the petitions?

(2) If the Board of Elections was not so required, did it properly determine that the petitions, in this instance, were misleading and therefore should not be placed upon the ballot?

I.

[3-5] R.C. 3501.11 provides, in relevant part:

'Each board of elections shall exercise by a majority vote all powers granted to such board by Title XXXV (35) of the Revised Code, shall perform all the duties imposed by law, and shall * * *

'(K) Review, examine, and certify the sufficiency and validity of petitions and nomination papers * * *.' Under these provisions the county boards of election have not only the right but also the duty, to scrutinize referendum petitions to determine whether their sufficiency and validity can be certified. State ex rel. Diversified Realty v. Board (1974), 42 Ohio App.2d 56, 327 N.E.2d 789. See State ex rel. Janasik v. Sarosy (1967), 12 Ohio St.2d 5, 230 N.E.2d 346. Decisions of the Supreme Court make it clear that the exercise of such power is quasi-judicial and that the county board of election has the power to decline to place an issue on the ballot in instances where statutory procedures are not complied with. See State ex rel. Home Fed. Sav. & Loan Assn. v. Moser (1974), 40 Ohio St.2d 94, 320 N.E.2d 672; State ex rel. Stillo v. Gwin (1969), 18 Ohio St.2d 66, 247 N.E.2d 481; State ex rel. Janasik v. Sarosy, supra. ¹

We have reviewed the decision of the Ohio Supreme Court in State ex rel. Polcyn v. Burkhart (1973), 33 Ohio St.2d 7, 292 N.E.2d 883, where a mandamus was filed seeking to compel a city council to certify a referendum petition to the board of elections. In that case the Supreme Court's examination of constitutional provisions relating to a charter city and consideration of the past case law resulted in the conclusion that a city council's 'power to examine initiative petitions for sufficiency has not been declared by this court to extend beyond matters of form, or 'administrative determinations' concerning the number of valid signatures.' State ex rel. Polcyn v. Burkhart, id., at 10, 292 N.E.2d at 885. While we are not unaware of the analogy that could be drawn between the powers of a city council and the powers of a board of election, we also realize the significant differences. Most important we note that the very broad language of R.C. 3501.11 vests the board of elections with a power to go beyond the face of the petitions in determining validity and sufficiency, a power which neither city council nor township board of trustees are given. State ex rel. Diversified Realty v. Board, supra, 42 Ohio App.2d at 58, 327 N.E.2d 789; 1971 Ohio Att'y Gen.Op., No. 71-052.

[7-9] Moreover, while we believe there is a substantive/procedural division between those matters into which the Board of Elections may make inquiry, we conclude that all the requirements governing the petitions to be used for seeking a referendum, including the content of such petitions, are procedural in nature and thus subject to the scrutiny of the board. ² The substantive limitation is only that the board of elections has no power to determine that an issue should not be placed on the ballot because if passed it would be unconstitutional or otherwise illegal. State ex rel. McGovern v. Bd. of Elections of Cuy. Cty. (1970), 24 Ohio Misc. 135, 263 N.E.2d 586. We therefore find that the Cuyahoga County Board of Elections was under a duty to examine the referendum petitions in question and to make a determination as to whether they complied with the applicable standards for referendum petition. Thus, the writ of mandamus in the instant case cannot be granted upon the grounds that the Board of Elections chose to examine the petitions and found them to be deficient. Rather, the determination of the issuance of the writ must turn upon a consideration of whether the board was legally correct in holding that the petitions were not sufficient.

II.

The amendment upon which the referendum was sought had its origin in the request of Home Links Golf Course that the Olmsted Township Zoning Commission amend the zone map of the unincorporated area of Olmsted Township to change the land owned by Home Links from one-family-residential property to four separate and independent zoning districts consisting of: (1) Residential-Multi-Family-Townhouse; (2) Residential-Multi-Family-Garden-Apartment; (3) Two-Family-Residential (Cluster/Duplex); and (4) Local Business. The first three parts of this proposal were accepted by the Zoning Commission, but the proposed change of the fourth area of land to Local Business was rejected. These recommendations were forwarded to the Olmsted Township Board of Trustees as required by statute.

On September 3, 1974, the Board of Trustees, at its public meeting, gave consideration to the Commission's recommendations. Although it is unclear as to the exact manner in which the various proposals were presented to the Board, an examination of Relator's Exhibit 2 indicates that each of the four proposals to create a new zoning district was made in a separately typed document which, by its nature and form, seemed to be a separate and self-contained resolution. In spite of the apparent independent nature of the four rezoning proposals, each of the documents bears the identification 'A-74,' and it is evident that the Board of Trustees treated them as one unified document. When the matter was brought to a vote, the Trustees voted in favor of denying the recommendations of the Zoning Commission by a vote of two to one. Since R.C. 519.12 requires a unanimous vote of the Board of Trustees in order to deny the Commission's recommendations, the recommendations of the Commission on Resolution A-74 were deemed adopted.

Subsequently,...