State ex rel. TAM O'Shanter Co. v. Stark Cnty. Bd. of Elections

• Decision Date: 12 October 2017
• Docket Number: No. 2017–1285,2017–1285
• Parties: The STATE EX REL. TAM O'SHANTER COMPANY et al. v. STARK COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

151 Ohio St.3d 134

86 N.E.3d 332

2017 Ohio 8167

The STATE EX REL. TAM O'SHANTER COMPANY et al.

v.STARK COUNTY BOARD OF ELECTIONS.

No. 2017–1285

Supreme Court of Ohio.

Submitted October 9, 2017

Decided October 12, 2017

McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, Columbus, and Ben F.C. Wallace ; and Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Terry A. Moore, Aletha M. Carver, and Owen J. Rarric, Canton, for relators.

John D. Ferrero, Stark County Prosecuting Attorney, and Deborah A. Dawson and Stephan P. Babik, Assistant Prosecuting Attorneys, for respondent.

Per Curiam.

{¶ 1} The issue in this original action seeking writs of mandamus and prohibition is whether a petition for a zoning referendum complied with R.C. 519.12(H). Relators contend that it did not comply, because it did not include a reference to the name of the property owner. Based on this omission, they argue, the referendum should be removed from the November 7, 2017 ballot. For the reasons below, we dismiss the mandamus claim and deny the request for a writ of prohibition. We also deny relators' motion to strike.

Facts

{¶ 2} The zoning-amendment proposal at issue involves approximately 62 acres of land in Jackson Township, Stark County, that is owned by relator Tam O'Shanter Company. The land, along with more than 200 additional adjacent acres, has been used as a golf course since the 1920s.

{¶ 3} In April 2017, Tam O'Shanter filed an application with the Jackson Township Zoning Commission, seeking to rezone the land from "R–R Rural Residential District" to "B–3 Commercial Business District." The copy of the zoning-amendment application submitted as evidence identifies the property owner as "Tam O'Shanter Company," but it does not indicate that a number or a title was assigned to the application.

{¶ 4} The Stark County Regional Planning Commission and the Jackson Township Zoning Commission both recommended approval of the proposed zoning change, with a minor modification. In a public-hearing notice, the zoning commission referred to the proposed zoning amendment as "Amendment 630–17" and identified "Tam O'Shanter Company" as the property owner.

{¶ 5} Based on the recommendations of the planning commission and the zoning commission, the Jackson Township Board of Trustees approved Tam O'Shanter's proposed zoning change, with the minor revision, in June 2017. In its public-hearing notices, the board of trustees referred to the proposed amendment as "Amendment 630–17" and identified "Tam O'Shanter Company" as the property owner. At the board-of-trustees hearing, the board president and the township law director referred to the matter as "Amendment 630–17." In the notice of its decision, which was the official record of the zoning amendment, the board of trustees again identified the amendment as "Amendment # 630–17." The name "Tam O'Shanter" appears once on the notice, under the words "Property Owner."

{¶ 6} After the board of trustees passed the zoning amendment, the requisite number of Jackson Township electors signed a referendum petition to place the amendment on the November 7, 2017 ballot. Referendum petitions for township zoning amendments are governed by R.C. 519.12(H), which provides:

Each part of this petition shall contain the number and the full and correct title, if any, of the zoning amendment resolution, motion, or application, furnishing the name by which the amendment is known and a brief summary of its contents.

{¶ 7} The petition at issue here identified the zoning-amendment proposal as "Jackson Township Zoning Amendment 630–17." The name "Tam O'Shanter" does not appear on the petition or in the language that would appear on the November 7 ballot. Respondent, Stark County Board of Elections, certified the petition and finalized the ballot language in August 2017.

{¶ 8} On August 25, 2017, Tam O'Shanter and relator Charles H. Bennell¹ (collectively, "relators") filed a protest against the referendum petition under R.C. 3501.39. Relators argued that the petition was invalid under R.C. 519.12(H) because it did not include "the full and correct title," "the name by which the amendment is known," or an adequate summary of the amendment's contents. According to relators, each of these statutory elements required the petition to include the name "Tam O'Shanter." On September 13, after a hearing, the board of elections denied the protest.

{¶ 9} Relators filed this action on September 14.

Analysis

Motion to strike

{¶ 10} In its merit brief, the board of elections asserts several times that a map of the property at issue was attached to the referendum part-petitions circulated to electors. Relators, arguing that this assertion is factually incorrect, move to strike the statements from the board's brief. They also seek leave to submit two affidavits that they say prove that maps were not attached to the part-petitions. In addition, relators move to strike two exhibits submitted by the board as evidence—because they were not part of the record before the board when it considered the protest—and the board's arguments concerning unrelated property in another county.

{¶ 11} The only legal authority relators cite in support of their motion is State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, in which we held that in an original action filed in this court, a board of elections cannot support its decision with "evidence that was not introduced at the hearing and upon which it did not rely." Id. at ¶ 40. Stoll, which did not involve a motion to strike, does not support relators' position; it merely explains that evidence that was not presented to a board of elections is not relevant to whether the board abused its discretion or clearly disregarded applicable law. Because we are capable of determining questions of relevance and assigning appropriate weight without striking evidence or arguments, we deny relators' motion to strike.

Mandamus

{¶ 12} "In general, if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction." State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999).

{¶ 13} Here, relators claim that they are entitled to a writ of mandamus to compel the board of elections to find the referendum petition insufficient and to reject it under R.C. 3501.39. Although relators frame their mandamus request in terms of compelling the board to discharge affirmative duties, their true objectives are a declaratory judgment (that the referendum petition is insufficient) and a prohibitory injunction (to prevent the referendum from being placed on the ballot). See State ex rel. Essig v. Blackwell, 103 Ohio St.3d 481, 2004-Ohio-5586, 817 N.E.2d 5, ¶ 20–22. We therefore dismiss relators' mandamus claim for lack of jurisdiction.

Prohibition

{¶ 14} Relators also seek a writ of prohibition to prevent the board of elections from submitting the proposed zoning amendment to the Jackson Township electorate. To prevail on this claim, relators must establish that the board has exercised or is about to exercise quasi-judicial power, that the exercise of that power is unauthorized by law, and that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Choices for South–Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 29.

{¶ 15} The first and third requirements are satisfied in this case. The board of elections exercised quasi-judicial authority by denying relators' protest following an R.C. 3501.39 hearing that included sworn testimony. See Christy v. Summit Cty. Bd. of Elections, 77 Ohio St.3d 35, 37, 671 N.E.2d 1 (1996). Because the election has not yet occurred, relief in prohibition still can prevent the referendum from being placed on the ballot, even though the board already has exercised its quasi-judicial power by denying the protest. Tatman v. Fairfield Cty. Bd. of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 14. In addition, because of the close proximity of the election, relators lack an adequate remedy in the ordinary course of law. See State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289, 292, 649 N.E.2d 1205 (1995).

{¶ 16} The dispositive issue in this case, therefore, is whether the decision of the board of elections denying relators' protest was authorized by law. On this question, the standard for our review is whether the board "engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions." Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Because relators do not argue that fraud or corruption occurred, we must decide whether the board abused its discretion or clearly disregarded applicable law. " ‘An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable attitude.’ " State ex rel. Hamilton County Bd. of Commrs. v. State Emp. Relations Bd., 102 Ohio St.3d 344, 2004-Ohio-3122, 810 N.E.2d 949, ¶ 17, quoting State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).

R.C. 519.12

{¶ 17} Relators argue that the referendum petition was defective because it did not comply with R.C. 519.12(H). "In interpreting R.C. 519.12(H), our paramount concern is legislative intent." State ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 32, citing State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 22. " ‘To discern this intent, we first consider the statutory language, reading words and phrases in context and construing them in accordance with rules of grammar and...