State ex rel. Steele v. Morrissey

Decision Date23 September 2004
Docket NumberNo. 2004-1445.,2004-1445.
Citation103 Ohio St.3d 355,815 NE 2d 1107
PartiesThe STATE EX REL. STEELE ET AL., v. MORRISSEY, AUD., ET AL.
CourtOhio Supreme Court

Hunter, Carnahan, Shoub & Byard, Russell E. Carnahan and Robert R. Byard, Columbus, for relators.

Toni L. Eddy, Chillicothe Law Director, and James L. Mann, Assistant Law Director, for respondent Morrissey.

Scott W. Nusbaum, Ross County Prosecuting Attorney, and Jason M. Miller, Assistant Prosecuting Attorney, for respondent Ross County Board of Elections.

Per Curiam.

{¶ 1} Relators, Steve Steele, Mark Gray, and Joseph Minney, are electors of the city of Chillicothe, Ohio, who are members of a committee filing a petition proposing an ordinance establishing minimum staffing levels in the Chillicothe Fire Department. On July 20, 2004, relators filed a precirculation copy of the initiative petition with respondent Chillicothe Auditor William D. Morrissey. The petition was presented on a form prescribed by the Secretary of State of Ohio and in accordance with the instructions of an employee of respondent Ross County Board of Elections.

{¶ 2} The top of relators' petition contained a preprinted note that "prior to circulation of an initiative petition proposing an ordinance or measure, a certified copy of such ordinance or measure must be filed with the City Auditor, Village Clerk or Township Clerk (home rule township)."

{¶ 3} The form continued with the following, mostly preprinted statement with the appropriate blanks filled in:

{¶ 4} "We, the undersigned, electors of the City of Chillicothe, Ohio respectfully propose to the electors of such city, village or township for their approval or rejection at the general election to be held on the 2nd day of November, 2004 the following Ordinance:

{¶ 5} "The following is a full and correct copy of the title and text of the proposed Ordinance."

{¶ 6} Thereafter, a copy of the title and text of the proposed ordinance establishing required staffing levels within the Chillicothe Fire Department was included.

{¶ 7} Following the text of the proposed ordinance was the preprinted statement on the next page of the petition: "We hereby designate the following petitioners as a committee to be regarded as filing the petition or its circulation." Directly underneath this sentence were relators' printed names and addresses. There is no evidence establishing who printed relators' names and addresses. The precirculation copy of relators' initiative petition contained no signatures.

{¶ 8} Relators circulated the initiative petition and collected signatures. On July 26, 2004, relators filed a petition containing over 1,000 signatures with Morrissey. On August 6, 2004, Morrissey transmitted the signed petition and the precirculation petition to the board of elections. On August 13, 2004, the board of elections notified Morrissey that the petition contained 770 valid signatures, which exceeded the required total of 622 valid signatures. The board returned the petition to Morrissey.

{¶ 9} On August 16, 2004, Chillicothe Law Director, Toni L. Eddy, submitted her opinion to Morrissey that the petition was insufficient and invalid because the precirculation copy filed by relators with Morrissey on July 20, 2004, did not contain a certified copy of the proposed ordinance as required by R.C. 731.32. On August 18, 2004, Morrissey notified the board of elections and relators that he would not certify the initiative petition for placement on the ballot based on the law director's opinion.

{¶ 10} On August 19, 2004, relators requested that the board of elections place the proposed ordinance on the November 2, 2004 general election ballot. The board of elections rejected relators' request.

{¶ 11} On August 30, 2004, relators filed this expedited election case for a writ of mandamus to compel Morrissey to certify the sufficiency and validity of the initiative petition to the board of elections and to compel the board of elections to place the proposed ordinance on the November 2, 2004 general election ballot. Relators also request attorney fees and expenses. Respondents answered the complaint, and the parties filed evidence and briefs in accordance with the expedited schedule set forth in S.Ct.Prac.R. X(9).

Laches

{¶ 12} Respondents claim that we cannot consider the merits of relators' mandamus claim because their claim is barred by laches. "Relators in election cases must exercise the utmost diligence." State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7. If relators do not act with the required promptness, laches may bar the action for extraordinary relief in an election-related matter. Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d 256, 2004-Ohio-812, 804 N.E.2d 419, ¶ 14.

{¶ 13} Relators waited 12 days from the date that Morrissey notified them that he would not certify the initiative petition to the board of elections for placement on the ballot to file this mandamus action on August 30. Respondents are correct that a delay as short as nine days can bar an election action based on laches. State ex rel. Vickers v. Summit Cty. Council, 97 Ohio St.3d 204, 2002-Ohio-5583, 777 N.E.2d 830, ¶ 14.

{¶ 14} But cases in which laches is dispositive generally involve prejudice to the respondents in their statutory obligation to absentee voters to have absentee ballots printed and ready for use. Id. at ¶ 18; State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio St.3d 592, 596, 757 N.E.2d 1135; R.C. 3509.01. Unlike these cases, the schedule for evidence and briefs in this case was completed before the passage of the absentee-ballot date, and the 12-day delay was not unreasonable under the circumstances. Therefore, laches does not bar relators' mandamus claim. See State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 27 ("the amended complaint filed in this case does not extend the schedule for the presentation of evidence and briefs in this expedited election case past the date for having absentee ballots printed and ready for use").

Mandamus

{¶ 15} Relators claim that they are entitled to a writ of mandamus to compel Morrissey to certify the sufficiency and validity of the initiative petition and to transmit the proposed ordinance to the board of elections for placement on the November 2, 2004 election ballot.

{¶ 16} In order to be entitled to the writ of mandamus, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of respondents to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Moore v. Malone, 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812, ¶ 20. Because of the proximity of the November 2, 2004 election, they lack an adequate remedy in the ordinary course of law. State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 21.

R.C. 731.32

{¶ 17} Respondents contend that relators cannot prove a clear legal right to the requested relief or a clear legal duty on the part of Morrissey and the board of elections to provide it because relators failed to comply with R.C. 731.32. R.C. 731.32 requires that whoever proposes an ordinance by initiative petition must, before circulating the petition, file a certified copy of the ordinance with the city auditor or village clerk:

{¶ 18} "Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or 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."

{¶ 19} R.C. 731.32 defines "certified copy" as used in the statute to require an attestation:

{¶ 20} "As used in this section, `certified copy' means a copy containing a written statement attesting that it is a true and exact reproduction of the original proposed ordinance or measure or of the original ordinance or measure." (Emphasis added.)

{¶ 21} In construing R.C. 731.32, our paramount concern is the legislative intent in enacting the statute. State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630, 786 N.E.2d 39, ¶ 12. In determining this intent, we first review the statutory language, reading words and phrases in context and construing them according to the rules of grammar and common usage. State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio St.3d 229, 231, 736 N.E.2d 886; R.C. 1.42.

{¶ 22} "`Attest' means `to certify to the verity of a copy of a public document formally by signature' and an attested copy of a document is `one which has been examined and compared with the original, with a certificate or memorandum of its correctness, signed by the persons who have examined it.'" (Emphasis added.) State ex rel. Crossman Communities of Ohio, Inc. v. Greene Cty. Bd. of Elections (1999), 87 Ohio St.3d 132, 137, 717 N.E.2d 1091, overruled in part on other grounds, State ex rel. Commt. for the Referendum of Ordinance No. 3844-02 v. Norris, 99 Ohio St.3d 336, 2003-Ohio-3887, 792 N.E.2d 186, ¶ 36-41, quoting Black's Law Dictionary (6th Ed.1990) 127-128.

{¶ 23} These definitions are consistent with common usage. See Garner, Black's Law Dictionary (8th Ed.2004) 138, defining "attest" as "to affirm to be true or genuine; to authenticate by signing as a witness." Moreover, "attestation clause" is defined as "a provision at an end of the instrument (esp. a will) that is signed by the instrument's witnesses"; see, also, Webster's Third New International Dictionary (1986) 141, defining "attest" as "to witness and authenticate by signing as a witness." (Emphasis added.)

{¶ 24} Relators assert that...

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