State ex rel. Willke v. Taft

Decision Date04 October 2005
Docket NumberNo. 2005-1647.,2005-1647.
PartiesThe STATE ex rel. WILLKE et al. v. TAFT, Governor, et al.
CourtOhio Supreme Court

Jim Petro, Attorney General, and Arthur J. Marziale Jr., Senior Deputy Attorney General, for respondents.


{¶ 1} This is an action in mandamus and injunction under Section 1, Article XVI of the Ohio Constitution to prevent the submission of a constitutional amendment to Ohio electors.

{¶ 2} In August 2005, the General Assembly adopted Am.Sub.H.J.R. 2 ("H.J.R. 2"), which proposed "to enact Section 2p of Article VIII of the Constitution of the State of Ohio to permit the issuance of general obligation bonds to create and preserve jobs, enhance employment and educational opportunities, and promote economic growth through funding local government public infrastructure capital improvements, research and development, and the development of certain sites and facilities, and to expand state and local government authority regarding economic development."

{¶ 3} At least three-fifths of the members of each house of the General Assembly voted to submit the proposed amendment to Ohio electors at the November 8, 2005 general election. See Section 1, Article XVI, Ohio Constitution ("Either branch of the general assembly may propose amendments to this constitution; and, if the same shall be agreed to by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and shall be filed with the secretary of state at least ninety days before the date of the election at which they are to be submitted to the electors").

{¶ 4} The proposed amendment specifies three development purposes and authorizes the General Assembly to provide for the issuance of general obligation bonds or other state obligations to finance the cost of projects implementing the purposes.

{¶ 5} The development purposes specified in the proposed amendment are public infrastructure capital improvements (the "public-works program"), research and development (the "Third Frontier program"), and business site and facility development (the "business-facilities program"):

{¶ 6} "Section 2p. (A) It is determined and confirmed that the development purposes referred to in this division, and provisions for them, are proper public purposes of the state and local governmental entities and are necessary and appropriate means to create and preserve jobs and enhance employment and educational opportunities; to improve the quality of life and the general economic well-being of all the people and businesses in all areas of this state, including economically disadvantaged businesses and individuals; and to preserve and expand the public capital infrastructure; all to better ensure the public health, safety, and welfare. Those purposes are:

{¶ 7} "(1) Public infrastructure capital improvements, which shall be limited to roads and bridges, waste water treatment systems, water supply systems, solid waste disposal facilities, and storm water and sanitary collection, storage, and treatment facilities, including real property, interests in real property, facilities, and equipment related to or incidental thereto, and shall include, without limitation, the cost of acquisition, construction, reconstruction, expansion, improvement, planning, and equipping;

{¶ 8} "(2) Research and development in support of Ohio industry, commerce, and business (hereinafter referred to as `research and development purposes'), which shall include, without limitation, research and product innovation, development, and commercialization through efforts by and collaboration among Ohio business and industry, state and local public entities and agencies, public and private education institutions, or research organizations and institutions, all as may be further provided for by state or local law, but excluding purposes provided for in Section 15 of Article VIII, Ohio Constitution; and

{¶ 9} "(3) Development of sites and facilities in Ohio for and in support of industry, commerce, distribution, and research and development purposes."

{¶ 10} Funding for the public-works program by state-issued bonds was first authorized by Ohio electors in 1987. Section 2k, Article VIII, Ohio Constitution. In 1998, the General Assembly codified the public-works program in R.C. Chapter 164. In 1995, Ohio electors renewed the public-works program by passing another statewide bond issue. Section 2m, Article VIII, Ohio Constitution.

{¶ 11} The General Assembly created the Third Frontier program in 2002 by enacting R.C. Chapter 184. See R.C. 184.01(A) ("There is hereby created the third frontier commission in the department of development. The purpose of the commission is to coordinate and administer science and technology programs to promote the welfare of the people of the state and to maximize the economic growth of the state through expansion of both of the following: (1) The state's high technology research and development capabilities; (2) The state's product and process innovation and commercialization"). In 2003, a Third Frontier statewide bond initiative proposed by 2003 Senate Joint Resolution 3 was rejected by voters.

{¶ 12} In January 2005, the public-works and Third Frontier components of H.J.R. 2 were introduced as separate resolutions in the General Assembly. These components were subsequently joined, and the business-facilities program was added to H.J.R. 2 by June 2005. Certain members of the General Assembly as well as various news media speculated that the reason for submitting the three components together as one proposed amendment was that the Third Frontier portion would have a better chance of passing if it were included with the public-works program than if it were submitted as a separate amendment.

{¶ 13} On September 2, 2005, relators, Dr. John C. Willke and Barbara Willke, state taxpayers and electors, instituted this expedited election action under Section 1, Article XVI of the Ohio Constitution for a writ of mandamus to compel respondents, Governor Bob Taft and Secretary of State J. Kenneth Blackwell, to strike the proposed constitutional amendment from the November 8, 2005 general election ballot or for an injunction preventing the proposed amendment from appearing on the ballot. Respondents answered, and the parties filed evidence and briefs pursuant to the expedited schedule set forth in S.Ct.Prac.R. X(9).

{¶ 14} This cause is now before us for a consideration of the merits.


{¶ 15} Under Section 1, Article XVI of the Ohio Constitution, the Supreme Court of Ohio has "exclusive, original jurisdiction in all cases challenging the adoption or submission of a proposed constitutional amendment to the electors," and "[n]o such case challenging * * * the actions or procedures of the general assembly in adopting and submitting a constitutional amendment shall be filed later than sixty-four days before the election."

{¶ 16} Therefore, because relators' action challenges the submission of the constitutional amendment proposed by H.J.R. 2 to the electors and was filed 64 days or more before the election, we have exclusive, original jurisdiction over relators' claims.


{¶ 17} Respondents initially assert that this expedited election case is barred by laches because relators delayed 25 days from the August 8 date that H.J.R. 2 was filed with the Secretary of State before filing this action. It is certainly true that if relators do not exercise the required diligence in an election-related matter, laches may bar the action. See, e.g., Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d 256, 2004-Ohio-812, 804 N.E.2d 419, ¶ 14.

{¶ 18} Generally, however, the application of laches requires some sort of prejudice to the other party. State ex rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 493, 700 N.E.2d 1234. Normally, this prejudice in expedited election cases occurs because relators' delay prejudices respondents by making the case an expedited election case under S.Ct.Prac.R. X(9), which restricts respondents' time to prepare and defend against relators' claims, or impairs boards of elections' ability to prepare, print, and distribute appropriate ballots because of the expiration of the time for providing absentee ballots. See, e.g., Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 27; State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio St.3d 592, 596, 757 N.E.2d 1135; R.C. 3509.01.

{¶ 19} But unlike respondents in those cases, respondents here assert no specific prejudice in their laches argument. Even if relators had delayed only seven days after passage of the resolution to file this case, it would have been governed by the accelerated schedule for expedited election cases under S.Ct.Prac.R. X(9). And the schedule for evidence and briefs was completed before the passage of the absentee-ballot deadline. See State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 14.

{¶ 20} Therefore, laches does not bar this expedited election case.

Relief Against the Governor

{¶ 21} Relators request mandamus and injunctive relief against both the Governor and the Secretary of State relating to the submission of H.J.R. 2 to the electors on the November 8 ballot. The Secretary of State has certain duties concerning the placement of proposed constitutional amendments on the ballot. See Section 1, Article XVI, Ohio Constitution; R.C. 3501.04 and 3501.05; see, also, State ex rel. Roahrig v. Brown (1972), 30 Ohio St.2d 82, 85, 59 O.O.2d 104, 282 N.E.2d 584.

{¶ 22} But relators cite no constitutional or statutory provision imposing any duty upon the Governor...

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