State ex rel. Sinay v. Sodders, 97-1785

• Decision Date: 15 October 1997
• Docket Number: No. 97-1785,97-1785
• Parties: The STATE ex rel. SINAY et al., Appellees, v. SODDERS, Clerk, et al., Appellants.
• Court: Ohio Supreme Court

Page 224

80 Ohio St.3d 224

685 N.E.2d 754

The STATE ex rel. SINAY et al., Appellees, v. SODDERS, Clerk, et al., Appellants.

No. 97-1785.

Supreme Court of Ohio.

Submitted Oct. 10, 1997.

Decided Oct. 15, 1997.

Coolidge, Wall, Womsley & Lombard Co., L.P.A., and Janice M. Paulus, Dayton, for appellees Sinay et al.

Gottschlich & Portune, LLP, and Robert E. Portune, Dayton, for appellees Randolph Township et al.

Michael P. McNamee, Englewood Law Director, Dayton; Calfee, Halter & Griswold, LLP, and Mark I. Wallach, Cleveland, for appellants.

PER CURIAM.

Standing

Appellants assert in their fifth proposition of law that the court of appeals erred by failing to dismiss appellees Randolph Township and the Randolph Township Board of Trustees because they lacked the requisite standing to be relators in the mandamus action. The court of appeals refused to rule on this issue because appellants conceded that the remaining appellees, Sinay and Spitler, had standing so that the issue of the standing of Randolph Township and its board of trustees was immaterial to whether appellants should be compelled to perform the requested acts. The court of appeals is correct. Regardless of whether Randolph Township and its board of trustees had standing, Sinay and Spitler did, so the writs of mandamus could still issue to compel appellants to perform the requested acts.

In addition, Randolph Township and its board of trustees had sufficient standing. Appellants contend that a party that is neither a taxpayer nor an elector of a municipality lacks standing in a mandamus action regarding a municipal initiative petition. Civ.R. 17(A) provides that "[e]very action shall be prosecuted in the name of the real party in interest." Further, a complaint for a writ of mandamus must set forth facts showing that the relator is a party beneficially interested in the requested acts before a proper claim is established. R.C. 2731.02. A real party in interest is directly benefited or injured by the outcome of the case rather than merely having an interest in the action itself. State ex rel. Massie v. Gahanna-Jefferson Pub. Schools Bd. of Edn. (1996), 76 Ohio St.3d 584, 585, 669 N.E.2d 839, 841.

It is true that as a general principle, resident electors and taxpayers like Sinay and Spitler have standing to bring mandamus actions to enforce public duties in election matters. State ex rel. Barth v. Hamilton Cty. Bd. of Elections (1992), 65 Ohio St.3d 219, 221-222, 602 N.E.2d 1130, 1132-1133. Nevertheless, this does not mean that a nonresident nonelector of a municipality can never have standing to compel a public official of the municipality to perform public duties. But, see, State ex rel. Russell v. Ehrnfelt (1993), 67 Ohio St.3d 132, 133, 616 N.E.2d 237, 238 (Nontaxpaying nonresidents of municipal corporation who merely had a contingent, contractual interest in sewer rates paid by others lacked standing to bring mandamus action to compel mayor to enforce ordinance pertaining to sewer rates.).

Instead, the applicable test is whether relators would be directly benefited or injured by a judgment in the case. Massie, 76 Ohio St.3d at 585, 669 N.E.2d at 841. This test applies to mandamus actions concerning election matters. State ex rel. Botkins v. Laws (1994), 69 Ohio St.3d 383, 387-388, 632 N.E.2d 897, 902; State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 150-151, 580 N.E.2d 767, 771. Here, absent the writs of mandamus, respondents' failure to perform the requested acts would have directly injured Randolph Township and its board of trustees by nullifying their agreement to create a joint fire and ambulance district, which is the subject of the initiative petition.

Based on the foregoing, even if the court of appeals erred in refusing to rule on the standing issue, any error was harmless because Randolph Township and its board of trustees had standing as relators to commence the mandamus action. ¹ The main case relied on by appellants, State ex rel. Skilton v. Miller (1955), 164 Ohio St. 163, 57 O.O. 145, 128 N.E.2d 47, paragraphs one, two, and three of the syllabus, is inapposite because in that case, the relator did not show that he was injured by the violation in any manner different from the general public.

R.C. 3519.05 and 3519.06; Circulator Statements

Appellants assert in their first and fourth propositions of law that they acted properly in refusing to certify the sufficiency and validity of the initiative petition to the board of elections. Section 7.01, Article VII of the Englewood Charter provides that municipal initiative and referendum powers "shall be exercised in a manner provided by the constitution and laws of the State of Ohio, except that all documents which according to the laws of the state are to be filed with the auditor shall be filed with the Clerk of the municipality." R.C. 731.31, which contains requirements for the presentation of municipal initiative and referendum petitions, provides that these petitions "shall be governed in all other respects by the rules set forth in section 3501.38 of the Revised Code." R.C. 3501.38 provides that all petitions "in addition to meeting the other specific requirements prescribed in the sections of the Revised Code relating thereto" are governed by specified rules, including that:

"(E) On each petition paper the circulator shall indicate the number of signatures contained thereon, and shall sign a statement made under penalty of election falsification that he witnessed the affixing of every signature, that all signers were to the best of his knowledge and belief qualified to sign, and that every signature is to the best of his knowledge and belief the signature of the person whose signature it purports to be."

While appellants do not contend that the initiative petition failed to comply with the foregoing requirements of R.C. 3501.38(E), they claim that the initiative petition was invalid because it did not comply with R.C. 3519.05 and 3519.06, which are "other specific requirements" mentioned in R.C. 3501.38.

The paramount consideration in construing statutes is legislative intent. State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 340, 673 N.E.2d 1351, 1353. In determining legislative intent, we must review the language of R.C. 3519.05 and 3519.06. See State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 997. R.C. 3519.05 and 3519.06 involve the same subject matter and should be construed in pari materia. See, e.g., State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 5-6, 591 N.E.2d 1186 1190; Hughes v. Ohio Bur. of Motor Vehicles (1997), 79 Ohio St.3d 305, 308, 681 N.E.2d 430, 433 ("All statutes pertaining to the same general subject matter must be read in pari materia.").

R.C. 3519.06 provides:

"No initiative or referendum part-petition is properly verified if it appears on the face thereof, or is made to appear by satisfactory evidence:

"(A) That the statement required by section 3519.05 of the Revised Code is not properly filled out[.]"

R.C. 3519.05 requires that the petition include a circulator's statement specifying if the circulator received any consideration for soliciting signatures and a declaration by the circulator that the electors signing the petition did so with knowledge of its contents. The initiative petition here contained neither of these statements.

Nevertheless, for the reasons that follow, the court of appeals correctly concluded that R.C. 3519.05 and 3519.06 did not require the municipal initiative petition to contain circulator compensation or elector knowledge statements. First, we have consistently recognized that R.C. Chapter 3519 applies only to statewide initiative and referendum petitions. State ex rel. Huebner v. W. Jefferson Village Council (1995), 72 Ohio St.3d 589, 591, 651 N.E.2d 1001, 1003, reconsideration granted on other grounds (1996), 75 Ohio St.3d 381, 662 N.E.2d 339; State ex rel. Spadafora v. Toledo City Council (1994), 71 Ohio St.3d 546, 549, 644 N.E.2d 393, 395; Markus v. Trumbull Cty. Bd. of Elections (1970), 22 Ohio St.2d 197, 200, 51 O.O.2d 277, 279, 259 N.E.2d 501, 502-503.

Second, a review of the plain language of the statutes indicates that they do not apply to municipal petitions. R.C. 3519.06 specifically refers to the statement required by R.C. 3519.05. R.C. 3519.05, which governs the form of petitions, contains references limiting its applicability to statewide issues, e.g., "constitutional amendment," "certification of the attorney general," "[t]he text of proposed amendment * * * shall be prefaced by 'Be it resolved by the people of the State of Ohio,' " " 'Law proposed by initiative petition first to be submitted to the General Assembly,' " and "[t]he text of the law so referred shall be followed by the certification of the secretary of state * * * that it has been compared with the copy of the enrolled bill * * *."

Third, the petition used forms prescribed by the state's chief election officer, the Secretary of State. Therefore, we must accord weight to the Secretary of State's apparent view that neither R.C. 3519.05 nor 3519.06 requires circulator compensation or elector-knowledge statements in municipal initiative and referendum petitions. State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections (1996), 75 Ohio St.3d 44, 47, 661 N.E.2d 699, 701, quoting Herman, 72 Ohio St.3d at 586 651 N.E.2d at 999 (" '[W]hen an election statute is subject to two different, but equally reasonable, interpretations, the interpretation of the Secretary of State, the state's chief election officer, is entitled to more weight.' ").

Finally, appellants' claim that Spadafora and State ex rel. Watkins v. Quirk (1978), 59 Ohio App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, required that the municipal initiative petition comply with R.C. 3519.05 and 3519.06 lacks merit. These cases provide merely that R.C. 3519.05 and 3519.06 may...