State ex rel. Watkins v. Quirk

• Decision Date: 28 June 1978
• Parties: , 13 O.O.3d 202 The STATE of Ohio ex rel. WATKINS v. QUIRK et al.
• Court: Ohio Court of Appeals

Page 175

59 Ohio App.2d 175

392 N.E.2d 1302, 13 O.O.3d 202

The STATE of Ohio ex rel. WATKINS v. QUIRK et al.

Court of Appeals of Ohio, Ninth District, Summit County.

June 28, 1978.

Syllabus by the Court

1. Where a municipal charter requires the clerk of council to first ascertain the sufficiency of a referendum petition before transmitting the petition to city council, the clerk's refusal to transmit the petition involves the exercise of discretion, the gross abuse of which is correctable through mandamus.

2. The power of a municipal clerk of council to ascertain the sufficiency of a referendum petition is not co-extensive with that of a board of elections under R.C. 3501.11(K). The clerk of council possesses no judicial or quasi-judicial power in this regard, but is limited to an examination of the face of the petition.

3. A municipal clerk of council has no authority to invalidate signatures affixed to a referendum petition in violation of R.C. 3501.38(F).

4. A municipal clerk of council does have authority to invalidate all signatures affixed to referendum part petitions circulated in violation of R.C. 731.32.

5. A municipal clerk of council does have authority to invalidate all signatures affixed to referendum part petitions where the part petition on its face violates R.C. 3519.06(C).

6. A municipal referendum part petition is not invalid because that part petition is circulated by a nonresident of the municipality.

William P. Michaels, Akron, for relator.

Carmen V. Roberto and John E. Codrea, Akron, for respondents.

MAHONEY, Presiding Judge.

Relator, Richard W. Watkins, seeks a writ of Mandamus compelling respondent, John A. Ramey, clerk of council of the city of Cuyahoga Falls, to transmit a certain referendum petition to city council. We determine that the writ shall not issue.

Facts

The complaint originally named Robert J. Quirk, Mayor of Cuyahoga Falls, and Jerry Sloan, the then city law director, as respondents. Motions to dismiss for failure to state a claim were filed on behalf of Quirk and Sloan. A motion for summary judgment was filed by all three respondents. We granted the motions to dismiss and denied the motion for summary judgment, leaving Ramey as the sole respondent. After several pretrial conferences, the parties submitted the following agreed statement of facts:

"1. The City of Cuyahoga Falls' Charter requires ten percent (10%) of the registered voters to sign a referendum in order for said referendum to be sufficient, i.e. 2,352 valid registered voters.

"2. On February 14, 1977 the City Council of the city of Cuyahoga Falls adopted Ordinance No. 34-1977 entitled 'Accepting the application for the annexation of certain territory containing 231.6521 acres in Northampton Township to the City of Cuyahoga Falls and declaring an Emergency.'

"3. On February 25, 1977, Attorney William Hendrick, one of the circulators, held a meeting with various people in regard to the ordinance and its recall through a referendum and secured petitions from George Vaughn, Summit County Board of Elections.

"4. On February 26th and 27th circulators gathered signatures.

"5. On February 28, 1977 Clerk of Council John ramey delivered a verified copy of the ordinance in question in the evening Clerk of Council John Ramey is a part-time employee of the City Council of Cuyahoga Falls.

"6. On March 1,1977 a verified copy of City Ordinance 34-1977 and a list of circulators was filed with Leo F. Lucas, Director of Finance for the City of Cuyahoga Falls.

"7. On March 14, 1977 Petitions 1 through 110 were filed with Respondent.

"8. On March 15, 1977 Petitions 111 through 114 were filed with Respondent.

"9. The Summit County Board of Elections certified that there were 23,522 registered voters in the City of Cuyahoga Falls and said Board upon the request of the Respondent, John Ramey, examined all the signatures on the petition and determined that there were 2,859 registered voters who signed the petition. Further, the Board of Elections did not examine nor make any determination regarding any other irregularities other than those who were registered voters.

"10. Respondent, John Ramey, did not invalidate any names that had been previously invalidated by the Board of Elections.

"11. Respondent, John Ramey, requested Jerry Sloan's opinion as to the sufficiency of the petitions and Jerry Sloan, Law Director, and the Law Department did consult and assist John Ramey, Clerk of Council, in gathering information, in order that the Clerk have a full understanding of the basis on which his decision on the sufficiency of said signatures was being based. Jerry Sloan advised John Ramey to reject the referendum petitions. Pursuant thereto respondent, John Ramey, determined that the petition was insufficient.

"12. Respondent, John Ramey, in examining the petitions filed with him, to determine their sufficiency concluded that 237 signatures were affixed to petitions in which the circulator failed to comply with the mandate of R.C. 3501.38(F) (Part Petition numbers 4, 23, 27, and 97).

"13. Respondent, John Ramey, also concluded that 252 signatures were invalid because they were obtained prior to March 1, 1977, the date of the filing of a verified copy of the ordinance with the Finance Director. (Part Petition numbers 9, 10, 13, 18, 22, 33, 50, 54, 57, 63, 94, and 100.)

"14. Respondent, John Ramey, also concluded that 410 signatures were invalid because they were affixed to part petitions wherein either the circulator failed to sign the part-petition or where the part-petition was circulated by more than one circulator. One part-petition wherein the circulator failed to sign contained 8 signatures. (Part-petition 109). Three hundred, forty-nine signatures were affixed to part-petitions wherein the part-petition was circulated by more than one circulator (part-petitions 2, 3, 5, 6, 7, and 8). Fifth-three signatures were affixed to part-petition 11 which was considered a double circulator part-petition because the signature of circulator Paul Marcotte was crossed out and the signature of Grace Marcotte added and sworn to; and further, the first voter signature (which was at some indeterminable time crossed off) is not covered by the attestation of circulator Grace Marcotte.

"15. That the Law Director who was accompanied by John Ramey and Secretary Linda Walk while in the presence of Attorney William Henrick did interview and question the following annexation circulators:

"Chuck Carst, 655 Eleanora Drive, Cuyahoga Falls, Ohio

"Grace Marcotte, 200 Cochran Road, Cuyahoga Falls, Ohio

"Robert Crawford, 3195 Rice Road, Cuyahoga Falls, Ohio

"Jane Walker, 196 Cochran Road, Cuyahoga Falls, Ohio

"Robert Walker, 196 Cochran Road, Cuyahoga Falls, Ohio

"Helen Mahaf, 3493 Haas Road, Cuyahoga Falls, Ohio

"Mary Mezzano, 52 Norton Heights Drive, Peninsula, Ohio

"16. That from said examination, the Law Director received statements which were inconsistent with the petitions that were signed by the double circulator. For example: double circulators with no physical means of determining where they started and stopped in obtaining signatures from individuals nor did they have any written record other than their personal memory as to where they started and stopped in obtaining signatures. On several occasions after showing the circulator the petition which they said they witnessed, they gave inconsistent statements as to where they in fact started and stopped obtaining signatures: specifically Jane and Robert Walker.

"17. Furthermore, that the above annexation circulators were all residents of the Township of Northampton with the exception of one Peninsula resident.

"18. Non-resident circulators collected 1,516 signatures which have not been excluded otherwise. Secondly, 85 out of the 114 petitions were circulated by Cuyahoga Falls residents.

"19. Attached hereto as a joint exhibit and included as part of the Statement of Facts are the original part-petitions filed with Respondent, John Ramey."

Issue I

"Whether the clerk of council when determining sufficiency of a referendum petition performs a ministerial or a discretionary function."

To be entitled to a writ of mandamus a relator must show: (1) a legal duty owed by the respondent; (2) a clear right to have that duty performed; and (3) that relator has no adequate remedy at law. State ex rel. National City Bank v. Bd. of Education (1977), 52 Ohio St.2d 81, 84, 369 N.E.2d 1200; State ex rel. Gongwer v. Graves (1913), 90 Ohio St. 311, 324-25, 107 N.E. 768. A writ may issue to compel performance of a ministerial act, to compel the exercise of discretion, or to correct a gross abuse of discretion. State ex rel. Ramsey v. Indus. Comm. (1942), 140 Ohio St. 246, 42 N.E.2d 981; State ex rel. Great Lakes College v. Medical Bd. (1972), 29 Ohio St.2d 198, 280 N.E.2d 900.

Section 2, Article III, of the Cuyahoga Falls charter, provides in part:

"The electors shall have the power to approve or reject at the polls any ordinance or resolution passed by the Council, except as hereinafter provided. Within thirty (30) days after the passage by the Council of such ordinance or resolution or its repassage over the Mayor's veto, whichever is later, a petition signed by at least ten percent (10%) of the electors of the City may be filed with the Clerk of the Council, requesting that such ordinance or resolution be either repealed or submitted to a vote of the electors. If said petition is signed by twenty percent (20%) or more of such electors, the date of the election may be fixed therein, not less than ninety (90) days from the time of filing thereof. When such petition is filed, the Clerk shall first ascertain the sufficiency of the petition, and if found sufficient, the Council shall thereupon, within thirty (30) days of the filing of such petition, reconsider such ordinance or resolution. * * *"

The respondent clearly has a duty to transmit a referendum petition to the...