State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections

• Decision Date: 01 May 1995
• Docket Number: No. 95-638,95-638
• Citation: 72 Ohio St.3d 289,649 N.E.2d 1205
• Parties: The STATE ex rel. THURN v. CUYAHOGA COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

Page 289

72 Ohio St.3d 289

649 N.E.2d 1205

The STATE ex rel. THURN v. CUYAHOGA COUNTY BOARD OF ELECTIONS.

No. 95-638.

Supreme Court of Ohio.

Submitted April 27, 1995.

Decided May 1, 1995.

In September 1994, the North Royalton Residents Involvement Committee ("RIC") sought to place proposed Ordinance No. 94-164 on the November 8, 1994 general election ballot by initiative petition. The proposed ordinance would have amended the Planning and Zoning Code of the city of North Royalton by creating a rural residential zoning classification. Proposed Ordinance No. 94-164 referenced and integrated eight "figures" which were incorporated in copies of the proposed ordinance attached to the initiative petition submitted to respondent, the Cuyahoga County Board of Elections ("board"). Some of the figures modified the accompanying text of proposed Ordinance No. 94-164. The board did not place proposed Ordinance No. 94-164 on the November 1994 ballot because the initiative petition failed to comply with the North Royalton Charter and state law.

On December 12, 1994, RIC filed a precirculation initiative petition with the North Royalton Clerk of Council for placement of proposed Ordinance Nos. 95-22, 95-23, and 95-24 on the May 2, 1995 election ballot. Proposed Ordinance No. 95-22, like proposed Ordinance No. 94-164, seeks amendment of the North Royalton Planning and Zoning Code to provide for a new rural residential zoning district. Proposed Ordinance No. 95-22 is substantially similar to proposed Ordinance No. 94-164. However, while Ordinance No. 95-22 includes parenthetical references in bold print to Figures 1-8 within its text, e.g., "(See Figure 1)," the figures are not attached.

Ordinance No. 95-23 would amend the North Royalton Zoning Map to rezone approximately 1,900 acres of individually owned property located in the southern portion of North Royalton from its current residential zoning status to the proposed rural residential classification. Ordinance No. 95-24 would prohibit the acceptance of new subdivision applications or granting or obtaining permits from the North Royalton Building Department for six months to allow the North Royalton City Council to have sufficient time to review and study changes that would be caused by the adoption of Ordinance Nos. 95-22 and 95-23.

The initiative petitions for the three proposed ordinances were circulated by RIC for signatures and were filed with the clerk of council on January 19, 1995. Following a hearing on the proposed ordinances, the North Royalton Planning Commission unanimously rejected them. The city council rejected Ordinance Nos. 95-23 and 95-24 and kept Ordinance No. 95-22 in committee, taking no further action on it.

On March 2, 1995, RIC submitted supplemental initiative petitions to the clerk of council on the three proposed ordinances. The clerk certified the text of the proposed ordinances to the board on March 9, 1995.

Relator, Joanne Eckstein Thurn, a resident elector of North Royalton who owns real property that will be adversely affected by the proposed ordinances, filed a protest contesting the validity of the initiative petitions filed by RIC. The board held a hearing on Thurn's protest at which Carol Thaler, who drafted proposed Ordinance No. 95-22, testified that the figures referenced but not attached to the ordinance were not part of the text. Thaler further testified that the figures were attached to the text when she presented it, and that she was not responsible for any subsequent decision by RIC to exclude the figures from the text of proposed Ordinance No. 95-22. The board, by a two-to-one vote, denied Thurn's protest and allowed the certification of the proposed ordinances on the May 2, 1995 ballot.

Thurn instituted this expedited election matter seeking a writ of mandamus preventing the board from placing proposed Ordinance Nos. 95-22, 95-23, and 95-24 on the May 1995 ballot. After the board filed an answer and a motion for summary judgment, we granted an alternative writ, sua sponte converting this mandamus action into one in prohibition.

Grendell & Marrer Co., L.P.A., Timothy J. Grendell, Independence and David H. Gunning II, University Heights, for relator.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., Patrick J. Murphy and Michael P. Butler, Asst. Pros. Attys., for respondent.

PER CURIAM.

Thurn initially requested a writ of mandamus to prevent the board from placing the three proposed ordinances on the May 1995 ballot. In general, where a complaint filed in this court or a court of appeals is purportedly in mandamus but the allegations manifestly indicate that the real object is injunction, the complaint does not state a cause of action for mandamus and must be dismissed for want of jurisdiction. State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1, 3, 640 N.E.2d 1136, 1137-1138; State ex rel. Walker v. Bowling Green (1994), 69 Ohio St.3d 391, 392, 632 N.E.2d 904, 905. Since the essence of Thurn's request for mandamus relief is injunctive, i.e., to enjoin the board from placing the proposed ordinances on the May 1995 ballot, the foregoing general rule would normally preclude her entitlement to a writ of mandamus.

Nevertheless, we have recognized the propriety of using a writ of mandamus to enjoin a board of elections from performing the ministerial act of placing an issue on an election ballot. State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153; State ex rel. Bogart v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 554, 621 N.E.2d 389. Similarly, in varying circumstances, we have held that the act of placing issues on the ballot is ministerial rather than quasi-judicial, so that prohibition will not lie to prevent their placement. See, e.g., State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 647 YN.E.2d 769; State ex rel. Brookpark Entertainment, Inc. v. Cuyahoga Cty. Bd. of Elections (1991), 60 Ohio St.3d 44, 46, 573 N.E.2d 596, 599.

Yet R.C. 3501.39 provides for a written protest to be filed against any petition for the purpose of becoming a candidate for any nomination or office or for the holding of an election on any issue and requires a hearing and determination on the protest. Thurn filed a written protest, and a hearing which included sworn testimony was held by the board. Since R.C. 3501.39 required a hearing which in some respects resembled a judicial trial, the board exercised quasi-judicial authority in denying Thurn's protest and deciding to place the proposed ordinances on the ballot. State ex rel. Youngstown, supra. Accordingly, mandamus does not lie. We thus sua sponte converted the claim to one in prohibition. See Burech, supra. Therefore, we must determine if prohibition, although unpled, is appropriate.

In order to obtain a writ of prohibition, Thurn must establish that (1) the board is about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 234-235, 638 N.E.2d 541, 543.

As to the first element, the board contends that it has already exercised its quasi-judicial power by denying Thurn's protest and that the absentee balloting process has already begun. However, this court has recognized that a writ of prohibition may issue to prevent the placement of names or issues on a ballot even though the protest hearing has been completed, as long as the election has not yet been held. State ex rel. Youngstown, supra; State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 591 N.E.2d 1194; cf. State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, 330, 59 O.O.2d 387, 389, 285 N.E.2d 22, 24. The board exercised quasi-judicial authority in denying Thurn's protest and deciding to place the proposed ordinances on the ballot. Concerning the third prerequisite for a writ of prohibition, given the proximity of the election, an injunction would arguably not constitute an adequate remedy because any "appellate process would last well past the election." State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 129, 412 N.E.2d 393, 394; see, also, State ex rel. Brown v. Summit Cty. Bd. of Elections (1989), 46 Ohio St.3d 166, 167-168, 545 N.E.2d 1256, 1258.

Therefore, the dispositive issue in this case is whether the board's exercise of quasi-judicial power in denying the protest and placing the proposed ordinances on the May 1995 ballot is unauthorized. A board's exercise of judicial or quasi-judicial power is unauthorized if it engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. State ex rel. Youngstown, supra, 72 Ohio St.3d at 72, 647 N.E.2d at 772; see, also, State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78, 79. Thurn contends that the board acted in clear disregard of R.C. Chapter 731 and the North Royalton Charter in denying her protest.

Both R.C. 731.31 and Article XV(d) of the North Royalton Charter provide that any initiative petition may be presented in separate parts, but each part shall contain a full and correct copy of the title and text of the proposed ordinance. See, also, R.C. 305.32. Extraordinary relief will lie to prevent an election on a proposed ordinance where the initiative petition does not contain a full and correct copy of the title and text of the proposed ordinance. State ex rel. Esch v. Lake Cty. Bd. of Elections (1991), 61 Ohio St.3d 595, 575 N.E.2d 835; see, also, Burech, supra. Omitting the title and/or text of a proposed ordinance interferes with the petition's ability to fairly and substantially present the issue and might mislead electors. Esch and Burech, supra.

Thurn relies on Esch and Burech...