State ex rel. v. Westlake

• Decision Date: 03 October 2002
• Docket Number: No. 2002-1552.,2002-1552.
• Citation: 776 N.E.2d 1041,2002 Ohio 5302,97 Ohio St.3d 100
• Parties: The STATE ex rel. COMMITTEE FOR THE CHARTER AMENDMENT, CITY TRASH COLLECTION, et al. v. CITY OF WESTLAKE et al.
• Court: Ohio Supreme Court

Page 1041

776 N.E.2d 1041

97 Ohio St.3d 100

2002 Ohio 5302

The STATE ex rel. COMMITTEE FOR THE CHARTER AMENDMENT, CITY TRASH COLLECTION, et al. v. CITY OF WESTLAKE et al.

No. 2002-1552.

Supreme Court of Ohio.

Submitted September 27, 2002.

Decided October 3, 2002.

COPYRIGHT MATERIAL OMITTED

Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.

David R. Harbarger, Westlake Law Director; Roetzel & Andress, L.P.A., Akron, Doug S. Musick and Vincent Squillance III, Columbus, for respondents.

PER CURIAM.

{¶ 1} On July 2, 2002, respondent Council of the city of Westlake, Ohio, passed Ordinance No. 2002-69, which privatized the city's trash collection services. The ordinance was passed as emergency legislation and was not subject to referendum.

{¶ 2} Relators, Committee for the Charter Amendment, City Trash Collection, and its individual members, circulated a petition proposing an amendment to the Westlake Charter. The amendment would require the Westlake Director of Public Service to use only public service employees "for the curbside collection of solid wastes, yard wastes, and recyclables from the residential household units of the City."

{¶ 3} On August 6, 2002, the committee filed the petition with respondent Westlake Clerk of Council Susan J. Prehoda. The petition consisted of 23 partpetitions containing 814 signatures. On August 9, 2002, Prehoda notified the committee members that the petition was insufficient because "a minimum number of 1,637 valid signatures of qualified electors of the City are required to begin the Charter amendment process." Prehoda further advised the committee members that they could withdraw the petition, continue circulating it, and subsequently refile it.

{¶ 4} On August 19, 2002, the committee requested that Prehoda explain the supposed requirement of 1,637 valid signatures mentioned in her August 9 letter. On August 21, 2002, Prehoda informed the committee that the signature requirement represented ten percent of the 16,436 total votes¹ cast at the November 2000 general election, which she claimed was the "last regular municipal election at which a Charter amendment was voted upon." On that same date, Westlake Law Director David R. Harbarger advised the committee that the petition did not contain sufficient signatures and that the proposed charter amendment, if enacted, would be unconstitutional.

{¶ 5} Based in part upon Prehoda's and Harbarger's responses, the committee withdrew the petition on August 28, 2002. The withdrawal of the petition was also based upon the board of elections' having given the petitioners petition forms that contained an outdated election falsification statement.

{¶ 6} On September 3, 2002, the committee filed a second petition concerning the proposed charter amendment. The petition was composed of 34 part-petitions containing 840 signatures. Fifteen of the 34 part-petitions were unaltered part-petitions that had been withdrawn on August 28.² Also on September 3, 2002, the committee's attorney filed memoranda with Prehoda and Harbarger specifying reasons why the city's reliance on the number of voters at the November 2000 general election was incorrect and why the November 2001 election was the appropriate election to determine the sufficiency of the petition. The committee demanded that Prehoda and the Westlake City Council immediately submit the proposed charter amendment to Westlake electors at the November 5, 2002 general election and if they failed to do so, that Harbarger take the necessary legal action to compel Prehoda and the city council to place the issue on the November 5, 2002 election ballot.

{¶ 7} Upon receiving the petition and after consulting with Harbarger, Prehoda submitted the petition to the Cuyahoga County Board of Elections to verify the number of valid signatures on the petition. On September 5, 2002, the board informed Prehoda that the petition contained 735 valid signatures.

{¶ 8} At the time she received the board's determination on September 5, Prehoda had already prepared the docket and agenda for that day's council meeting. Harbarger prepared an ordinance directing the submission of the proposed charter amendment to the electorate so that it would be available if the city council decided to add it to the agenda at the September 5 meeting.

{¶ 9} At the September 5, 2002 council meeting, a motion to add the ordinance for the proposed charter amendment to the agenda was defeated. In their discussion, council members expressed their desire to "protect" and "defend" the charter and disappointment that the petition contained insufficient signatures. The law director had advised council that since the petition required ten percent of the votes cast at either the November 2000 election or the November 1995 election, i.e., the last elections at which charter amendments were on the ballot, the petition contained insufficient signatures. The ordinance, in revised form, was then scheduled to be on the agenda for the September 19, 2002 council meeting. Under Sections 8 and 9, Article XVIII of the Ohio Constitution, September 6, 2002, was the last day for council to submit the proposed charter amendment to Westlake electors at the November 5, 2002 general election. According to the relators, placing the charter amendment issue on a special election ballot rather than on the November 5 general election ballot would cost between $28,000 and $30,000.

{¶ 10} On September 6, 2002, relators, the committee and its members, filed this action for a writ of mandamus to compel respondents, the city of Westlake, the city council, and Prehoda, to submit the petition to the Cuyahoga County Board of Elections and to have the proposed charter amendment placed on the November 5, 2002 general election ballot. Respondents filed an answer and a motion for judgment on the pleadings, and the parties filed evidence and briefs pursuant to the expedited schedule in S.Ct.Prac.R. X(9). On September 19, 2002, the city council did not place the proposed charter amendment on the ballot.

Motion for Judgment on the Pleadings

{¶ 11} Respondents request judgment on the pleadings under Civ.R. 12(C).

{¶ 12} We deny the motion because, like other procedural motions, a motion for judgment on the pleadings is inappropriate in expedited election cases filed here. State ex rel. Toledo v. Lucas Cty. Bd. of Elections (2002), 95 Ohio St.3d 73, 74, 765 N.E.2d 854. "Under S.Ct.Prac.R. X(9), the presentation of evidence and briefs on the merits in expedited election cases is provided in lieu of a S.Ct.Prac.R. X(5) dismissal determination, making procedural motions generally inapplicable." Id., citing State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 111, 712 N.E.2d 696.

{¶ 13} Moreover, as discussed later, it does not appear beyond doubt that the committee and its members can prove no set of facts warranting the requested relief, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in their favor.

{¶ 14} Therefore, we deny respondents' motion for judgment on the pleadings.

S.Ct.Prac.R. X(9)

{¶ 15} Respondents claim that they have no duty to take any action in regard to the November 5 election. They assert therefore that this case is not an expedited election case and should not proceed under the schedule in S.Ct.Prac.R. X(9). That rule provides an expedited evidence and briefing schedule if "an original action relating to a pending election * * * is filed within 90 days prior to the election." Relators' mandamus complaint relates to the November 5, 2002 election and was filed within 90 days prior to the election. Therefore, S.Ct.Prac.R. X(9) applies, and respondents' contention is meritless.

Laches

{¶ 16} Extreme diligence and promptness are required in election-related matters, and "i[f] a party seeking extraordinary relief in an election-related matter fails to exercise the requisite diligence, laches may bar the action.'" State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d 522, 523, 757 N.E.2d 307, quoting State ex rel. Hills Communities, Inc. v. Clermont Cty. Bd. of Elections (2001), 91 Ohio St.3d 465, 467, 746 N.E.2d 1115.

{¶ 17} Respondents assert that relators' claims are barred by laches because they could have or should have instituted expedited election proceedings on August 9 or August 21. But respondents did not divulge the rationale for their reliance on a signature requirement of 1,637 valid signatures until August 21, and their advice and improper petition forms given to relators by the board of elections caused relators' subsequent withdrawal of their initial petition. After relators filed a second petition on September 3, respondents had sufficient opportunity to have the board of elections verify the number of valid signatures on that petition and to place the proposed charter amendment on the November 5, 2002 election ballot if the petition contained sufficient valid signatures. When the city council failed to do so at its September 5 meeting, relators waited only one day to file this expedited election case on September 6. In addition, briefing and evidence in this case were completed before the R.C. 3509.01 deadline to have absentee ballots printed and ready for use.

{¶ 18} Under these circumstances, relators exercised the diligence required in election cases. The cases cited by respondents are distinguishable. Cf. State ex rel Manos v. Delaware Cty. Bd. of Elections (1998), 83 Ohio St.3d 562, 701 N.E.2d 371; State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio St.3d 592, 757 N.E.2d 1135.

{¶ 19} In Manos, 83 Ohio St.3d at 563-564, 701 N.E.2d 371, the relators waited 28 days after a referendum petition was transmitted by the city clerk and filed with the board of elections to file their written protest although they knew the basis of most of their objections even before the petition was filed, and by the time the...