State ex rel. v. Bd. of Elections

• Decision Date: 08 October 2007
• Docket Number: No. 2007-1732.,2007-1732.
• Parties: The STATE ex rel. CITIZEN ACTION FOR A LIVABLE MONTGOMERY v. HAMILTON COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

875 N.E.2d 902

115 Ohio St.3d 437

2007-Ohio-5379

The STATE ex rel. CITIZEN ACTION FOR A LIVABLE MONTGOMERY v. HAMILTON COUNTY BOARD OF ELECTIONS.

No. 2007-1732.

Supreme Court of Ohio.

Submitted October 2, 2007.

Decided October 8, 2007.

Webb & Pillich, L.L.C., and Constance M. Pillich, for relator.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T. Stevenson, Assistant Prosecuting Attorney, for respondent.

Donnellon, Donnellon & Miller and Terrence M. Donnellon, Cincinnati, urging denial of the writ for amicus curiae city of Montgomery.

Langdon & Hartman, L.L.C., and David R. Langdon, urging denial of the writ for amicus curiae Residents for a Responsible Montgomery.

PER CURIAM.

{¶ 1} This is an expedited election action for a writ of mandamus to compel a board of elections to include an ordinance proposed by initiative petition on the November 6, 2007 general election ballot. Because the board of elections abused its discretion in determining that the proposed ordinance constituted administrative action, we grant the writ.

{¶ 2} Relator, Citizen Action for a Livable Montgomery, is a group of citizens of the city of Montgomery, Ohio. Citizen Action was formed to place a proposed ordinance known as the Natural Parkland Initiative on the November 6, 2007 election ballot.

{¶ 3} The proposed ordinance directs the acquisition, purchase, establishment, and maintenance of natural parkland along the Montgomery Road corridor in the city and allows for the allocation of money from the city general fund reserve balance to accomplish these objectives:

{¶ 4} "Section I. Acquisition of Nature Park Land. The real estate described in Exhibit A shall be acquired and maintained by the City of Montgomery for park, recreational, and green space preservation purposes. The City of Montgomery shall acquire this land by purchase, and in doing so shall comply with all appropriate procedures and law of Ohio.

{¶ 5} "Section II. Purpose of the Acquisition. The land shall be preserved as a passive park, recreational area, and nature preserve. Construction of facilities within the park shall be limited, with the intent to preserve as much natural vegetation as possible. Such limited construction may include walking paths bicycle paths, access to the land from the Safety Center/Montgomery Pool parking area, and a walkway or bridge over the stream.

{¶ 6} "Section III. Name of the Nature Park. The Montgomery Parks and Recreation Commission shall name the Nature Park.

{¶ 7} "Section IV. Maintenance of the Nature Park. The Montgomery Parks and Recreation Commission shall direct the construction of facilities and maintenance of the Nature Park. The City of Montgomery, upon the recommendation of the Montgomery Parks and Recreation Commission, is empowered to establish a trust for the purpose of holding and maintaining the Nature Park and any other City of Montgomery Park.

{¶ 8} "Section V. Establishing an Endowment Fund for the Nature Park. The City of Montgomery, through its actions authorized by Section VI, shall ensure that, in addition to the acquisition of the Nature Park land and establishment of the Nature Park and its basic features and facilities, an endowment is created for the purpose of maintaining the Nature Park. The City Council, upon considering recommendations of the Parks and Recreation Commission, shall determine the size and character of this endowment.

{¶ 9} "Section VI. Funding the Acquisition, Establishment, and Maintenance of the Nature Park. The City Council shall immediately create and implement a plan to designate funds to accomplish the objectives of this Initiative. The City Council shall use all appropriate means to comply with this provision, including, but not limited to, the general fund reserve balance, grants, and contributions from government, institutions, citizens, groups, and businesses.

{¶ 10} "Section VII. Expiration of the Funding. The City of Montgomery shall cause the expenditure of funds for this Initiative to expire when it has acquired this land, developed natural pathways, constructed facilities, and established an endowment sufficient to maintain the land as a passive park, nature preserve, and recreational area.

{¶ 11} "Section VIII. Repeal by Electors Only. This ordinance cannot be repealed except by vote of a majority of the electors in a general election to the extent allowed by law.

{¶ 12} "Section IX. Immediate Implementation. The City Council shall immediately take all steps necessary to implement the provisions of this initiative.

{¶ 13} "Section X. Severability. If any provision in this Initiative is found to be invalid, unlawful, or unenforceable, the remaining provisions shall continue to be valid and enforceable."

{¶ 14} On June 6, in accordance with Section 8.02 of the Montgomery Charter, Citizen Action filed a copy of an initiative petition concerning the proposed ordinance with the Montgomery clerk of council. Citizen Action circulated the petition, and on July 13, it filed the petition, which contained 854 signatures, with the clerk of council. The clerk of council sent the petition to respondent, Hamilton County Board of Elections, for signature verification. The board of elections verified that the petition contained 754 valid signatures, which is more than the required number of signatures for placement of the initiative on the election ballot.

{¶ 15} On August 22, the Montgomery City Council determined that the initiative was sufficient and valid and sent the proposed ordinance to the board of elections for placement on the November 6, 2007 ballot.

{¶ 16} Eugene Droder III, a resident of Montgomery, chair of the Montgomery Parks and Recreation Commission, and an attorney who represents the city in labor law matters, filed with the board of elections a written protest against the initiative on behalf of himself and others on September 4. The protesters claimed that the initiative should not be placed on the November 6, 2007 general election ballot because it contained more than one subject and deprived the city of its legislative authority.

{¶ 17} Less than a week later, the protesters filed a supplemental brief in which they claimed that the proposed ordinance constituted an administrative action, rather than a legislative action, and was thus not subject to initiative. The city submitted a brief in support of the protest based on the same grounds. Citizen Action submitted memoranda in opposition to the protest.

{¶ 18} On September 11, the board of elections conducted a hearing on the protest. At the hearing's conclusion, the board voted to not place the proposed ordinance on the ballot. Upholding the protest, the board of elections determined that the initiative constituted administrative action, which was not a proper subject for initiative.

{¶ 19} On September 18, Citizen Action filed this expedited election action for a writ of mandamus to compel the board of elections to include the Natural Parkland Initiative on the November 6, 2007 election ballot. The board submitted a response, and the parties filed evidence and briefs pursuant to the accelerated schedule set forth in S.Ct.Prac.R. X(9). After Citizen Action filed a reply brief to the board's merit brief, the city filed a motion to intervene, a merit brief in support of the board, and evidence, and Residents for a Responsible Montgomery filed an amicus curiae brief in support of the board. On October 1, Citizen Action filed a revised reply brief.

{¶ 20} This cause is now before the court upon the merits.

Motion to Intervene

{¶ 21} The city of Montgomery seeks to intervene as a respondent in this expedited election case.

{¶ 22} We deny the city's motion and strike its evidence. The city did not file any pleading with its motion. Tatman v. Fairfield Cty. Bd. of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 11 ("Civ.R. 24(C) requires that any * * * motion [to intervene] be accompanied by a pleading `setting forth the claim or defense for which intervention is sought'"); see, also, State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789 N.E.2d 203, ¶ 12, fn. 1, and cases cited therein. In addition, the city's motion was not timely filed, because, although the city should have known of the filing of this case, it waited until after the parties filed their evidence and briefs before requesting intervention. See, e.g., State ex rel. Mason v. Griffin, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644, ¶ 10 (motion to intervene in writ case denied as untimely when prospective intervenor waited until after parties had filed evidence and initial briefs before attempting to intervene).

{¶ 23} Because the city is not entitled to intervene, it is also not entitled to file evidence. See S.Ct.Prac.R. X(9), authorizing only parties to file evidence in expedited election cases.

Amicus Curiae Briefs

{¶ 24} Although we have denied the city's motion to intervene for the reasons previously set forth, the city is entitled to file an amicus curiae brief without leave of court. See Tatman, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 12, citing State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995) 72 Ohio St.3d 69, 70, 647 N.E.2d 769 (court considers amicus curiae brief of a candidate whose motion to intervene in an election case was denied because of his failure to comply with Civ.R. 24(C)). We will therefore treat Montgomery as an amicus curiae. In addition, Residents for a Responsible Montgomery ("Residents"), which proclaims itself to be a group of city residents opposed to the Natural Parkland Initiative and whose members include some of those who filed the protest against the initiative, filed an amicus curiae brief in support of respondent.

{¶ 25} The amici curiae failed to coordinate the filing of their briefs with the brief of the board of elections. As a result, their amicus curiae briefs were filed after Citizen Action...