State ex rel. Twitchell v. Saferin

Decision Date21 September 2018
Docket NumberNo. 2018-1238,2018-1238
Citation119 N.E.3d 365,2018 Ohio 3829,155 Ohio St.3d 52
Parties The STATE EX REL. TWITCHELL et al. v. SAFERIN et al.
CourtOhio Supreme Court

Terry J. Lodge Toledo, and Jensen Silvis, for relators.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for respondents.

Chad A. Endsley, Leah F. Curtis, and Amy M. Milam, urging denial of the writ for amici curiae Ohio Farm Bureau Federation and Lucas County Farm Bureau.

Barrett, Easterday, Cunningham & Eselgroth, L.L.P., David C. Barrett Jr., Carolyn Eselgroth, Dublin, and Amanda Stacy Hartman, urging denial of the writ for amici curiae Ohio Soybean Association, Ohio Corn & Wheat Growers Association, Ohio Poultry Association, Ohio Cattlemen's Association, Ohio Dairy Producers Association, Ohio Pork Council, Ohio Sheep Improvement Association, and Ohio Agribusiness Association.

Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, Columbus, urging denial of the writ for amici curiae Affiliated Construction Trades Ohio Foundation, Ohio Chamber of Commerce, Ohio Oil and Gas Association, Ohio Chemistry Technology Council, and American Petroleum Institute.

Per Curiam.

{¶ 1} In this expedited election case, relators, Bryan Twitchell, Julian C. Mack, and Sean M. Nestor, seek a writ of mandamus to compel respondent Lucas County Board of Elections1 to place a proposed charter amendment on the November 6, 2018 general-election ballot. For the reasons set forth below, we deny the writ.


{¶ 2} On August 6, 2018, Twitchell, Mack, and Nestor submitted part-petitions in support of a proposed amendment to the Toledo City Charter entitled the Lake Erie Bill of Rights ("LEBOR"). The LEBOR would declare that Lake Erie and the Lake Erie watershed "possess the right to exist, flourish, and naturally evolve" and that the citizens of Toledo have a right to a clean and healthy environment, including the Lake Erie ecosystem. Section 2 would make it unlawful for a corporation or government to violate the rights secured by the LEBOR and declares that within the city of Toledo, any corporate license or privilege that would violate these rights would be void. Section 3 would make it a crime to violate the provisions of the LEBOR, would allow the city of Toledo, or any resident, to "enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas," and would recognize the right of the Lake Erie ecosystem itself to enforce its rights in an action prosecuted by the city or any resident of the city. Finally, Section 4 purports to nullify any state laws or agency rules that conflict with the provisions of the LEBOR.

{¶ 3} The Lucas County Board of Elections verified a sufficient number of petition signatures to qualify the measure for the ballot. However, on August 28, 2018, the board voted 4 to 0 to refuse to place the charter amendment on the ballot on the ground that it contained provisions that are beyond the authority of the city to enact. Specifically, the board followed the recommendation of its legal counsel to reject the petition on the grounds that (1) it creates a new cause of action and (2) it confers jurisdiction on the common pleas court to hear the new cause of action.

{¶ 4} On August 30, Twitchell, Mack, and Nestor filed the present expedited election complaint. The parties have filed briefs and evidence in accordance with the calendar for expedited election cases in S.Ct.Prac.R. 12.08, and we have received two amicus briefs in support of respondents.


{¶ 5} To be entitled to a writ of mandamus, a relator must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide that relief, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. To satisfy the first two requirements, a relator must show that the respondent engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. Because there is no allegation of fraud or corruption in this case, Twitchell, Mack, and Nestor must show that the board abused its discretion or disregarded the law when it rejected the petition.

{¶ 6} Twitchell, Mack, and Nestor have not shown that the elections board abused its discretion in keeping the LEBOR off the ballot. The elections board relied on this court's decision in State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, which held that elections boards are authorized " ‘to determine whether a ballot measure falls within the scope of the constitutional power of referendum or initiative,’ " id . at ¶ 11, quoting State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9. We do not find an abuse of discretion or disregard of the law in the election board's reliance on Flak given that Flak also involved proposed amendments to a city charter. "County boards of elections are of statutory creation, and the members thereof in the performance of their duties must comply with applicable statutory requirements." State ex rel. Babcock v. Perkins , 165 Ohio St. 185, 187, 134 N.E.2d 839 (1956). It was not unreasonable for the elections board to look to Flak for guidance on its statutory duties.

{¶ 7} Twitchell, Mack, and Nestor argue that the elections board should have relied on this court's decision in State ex rel. Espen v. Wood Cty. Bd. of Elections , 154 Ohio St.3d 1, 2017-Ohio-8223, 110 N.E.3d 1222. But that case did not result in a majority opinion. Thus, the elections board did not improperly disregard Espen .

{¶ 8} Twitchell, Mack, and Nestor also argue that the authority granted to elections boards in R.C. 3501.11(K)(2), adopted in 2016 Sub.H.B. No. 463 ("H.B. 463") is unconstitutional because it violates either the doctrine of separation of powers or the single-subject rule. But as we have observed in other recent decisions, we need not reach these issues, because we can decide this case under pre-H.B. 463 caselaw. See Flak , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, at ¶ 17 ; State ex rel. Bolzenius v. Preisse , 155 Ohio St.3d 45, 2018-Ohio-3708, 119 N.E.3d 358.

{¶ 9} Because Twitchell, Mack, and Nestor have not demonstrated that the board of elections abused its discretion when it relied on Flak to deny the request to place the LEBOR charter amendments on the ballot, we deny the writ.

Writ denied.

French and DeGenaro, JJ., concur.

O'Connor, C.J., concurs, with an opinion.

Kennedy, J., concurs in judgment only, with an opinion joined by O'Donnell and DeWine, JJ.

O'Donnell, J., joins Justice Kennedy's opinion and recognizes Justice Fischer's position that portions of 2016 Sub.H.B. No. 463 are unconstitutional, but finds it unnecessary to reach that issue in this case.

Fischer, J., dissents, with an opinion.

O'Connor, C.J., concurring.

{¶ 10} I agree with the lead opinion’s determination that respondent Lucas County Board of Elections did not abuse its discretion in refusing to place the charter amendment on the ballot and therefore relators, Bryan Twitchell, Julian C. Mack, and Sean M. Nestor, have failed to establish that they are entitled to a writ of mandamus. I write separately to address the impropriety of reaching the issues raised by the opinion concurring in judgment only.

{¶ 11} "While there may be exceptions, it is not generally the proper role of this court to develop a party's arguments." In re Columbus S. Power Co. , 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19. Indeed, the opinion concurring in judgment only would not only rewrite significant constitutional provisions, it would sua sponte declare portions of the Toledo city charter to be in conflict with the Ohio Constitution, all without the slightest input from the parties. We should adhere to this court's long-standing policy not to address issues not raised by the parties. Sizemore v. Smith , 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. We have recognized that "justice is far better served" when we have the benefit of the parties' briefing and arguments before we make a final determination. Id. ; see also Apple Group, Ltd. v. Granger Twp. Bd. of Zoning Appeals , 144 Ohio St.3d 188, 2015-Ohio-2343, 41 N.E.3d 1185, ¶ 52 (Kennedy, J., dissenting) (critiquing the majority opinion's reliance in that case on an issue that was not appealed to this court, that "the parties did not brief or argue," and that was decided "without relying on experts or authoritative statements and without considering the unique needs" of the parties).

{¶ 12} As recently as last week, this court denied a writ of mandamus by relying, in part, on State ex rel. Flak v. Betras , 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329. Today, the opinion concurring in judgment only—which is advanced by justices who concurred in the decision in Flak —sua sponte concludes that our prior decisions were in error. But nothing has changed in the short time since Flak was announced; not the relevant statutes or constitutional provisions, not the parties' arguments, and not the makeup of this court. To so quickly abandon our prior case law without the benefit of briefing by the parties, as the opinion concurring in judgment only suggests that we do, would leave the law vulnerable to the whims of those sitting on the bench, rather than moored to the principled and disciplined approach that is the cornerstone of an independent judiciary.

{¶ 13} That is not to say that this court should be so tied to precedent that it would reject an opportunity to correct an error. But it is a frivolous use of judicial authority to...

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