State v. Stahl, No. 83037 (Ohio App. 11/20/2003)

• Decision Date: 20 November 2003
• Docket Number: No. 83037,83037
• Parties: STATE OF OHIO, EX REL., JAMES R. CODY Relator v. PATRICIA F. STAHL, ET AL. Respondent.
• Court: Ohio Court of Appeals

Page 1

Unpublished Opinion

STATE OF OHIO, EX REL., JAMES R. CODYRelator v.PATRICIA F. STAHL, ET AL. Respondent.

No. 83037

Court of Appeals of Ohio, Eighth District, County of Cuyahoga.

November 20, 2003.

WRIT OF MANDAMUS, MotionNo. 350610, OrderNo. 353639.

Writ Denied.

JAMES R. CODY: WILLIAM H. SMITH, ESQ.William H. Smith & Associates 940 Rockefeller Building 614 Superior Avenue N.W. Cleveland, Ohio 44113, for Relator.

PATRICIA F. STAHL AND CHARLES E. MERCHANT: CHARLES E. MERCHANT, ESQ. Law Director City of Bedford Heights 5661 Perkins Road Bedford Heights, Ohio 44146, For Respondent.

ORIGINAL ACTION

JOURNAL ENTRY AND OPINION

JAMES J. SWEENEY, J.

{¶1} On June 16, 2003, the relator, James Cody, commenced this mandamus action against the respondents, Patricia Stahl who is the Clerk of the Bedford Heights Council and Charles Merchant who is the Law Director for Bedford Heights, to compel them "to submit the proposed ordinance contained in the [initiative] petition to the voters of the City of Bedford Heights at the next general election."(Prayer for relief in complaint.)On July 14, 2003, the respondents moved for summary judgment on the grounds that the initiative petition is invalid because the part petitions do not have the required circulator affidavits.On September 15, 2003, Mr. Cody filed his brief in opposition arguing estoppel.On September 22, 2003, the respondents filed a reply brief.For the following reasons, this court grants the respondents' motion for summary judgment and denies the application for a writ of mandamus.

{¶2}Article XII of the Bedford Heights Charter governs initiative and referendum.Section 12.01.01, Procedure for Initiative, provides that an initiative petition is to be submitted to the Clerk-Treasurer of Council and must be signed by at least a certain number of registered voters in Bedford Heights.Section 12.04, Petitions, provides that each initiative or referendum petition may be circulated in separate parts, but must be bound together and filed as one instrument.Each such part petition must contain "a full and correct copy of the title and text of the proposed or objectionable ordinance ***" and bear the names of at least five registered electors who shall constitute the Petitioners' Committee.This section further requires that each part petition contain a circulator's affidavit, "stating the number of signers to such part of the petition, and that each signature thereon is the genuine signature of the person whose name it purports to be and was subscribed in the presence of the affiant."

{¶3}Section 12.01.02, Referred to Committee, states that within twenty days after the filing of an initiative petition, the Clerk-Treasurer shall determine its sufficiency, and if the petition is sufficient, shall refer it to Council at the next regular meeting.Council shall then read the proposed ordinance and refer it to the appropriate committee which shall report its recommendations within forty-five days.Under Section 12.01.03 if Council fails to enact the proposed ordinance as submitted, "the Petitioners' Committee may require that it be submitted to a vote of the electors by filing with the Clerk-Treasurer a demand in writing within twenty (20) days after the final action on such ordinance or resolution by the Council.*** Council shall thereupon provide for submitting such ordinance or resolution to the vote of the electors."

{¶4} Preparing and submitting petitions for referendum follow the same procedures.However, such petitions must be submitted within thirty days after the final passage of an ordinance or resolution by Council.

{¶5} As culled from the materials submitted, Council and the Mayor had sought to obtain federal funds to expand the jail so that it could hold federal prisoners.However, Mr. Cody, who is also a Bedford Heights Councilman, thought at the very least that the electorate should directly vote on this matter.In late 2002, Mr. Cody submitted an initiative petition concerning expanding jail facilities in Bedford Heights to the Clerk of Council who rejected the petition as not being properly verified.

{¶6} Mr. Cody also submitted a copy of the proposed petition to the Law Department and asked it to opine on whether there was "anything in the petition that was filed with the Clerk's Office to be circulated regarding the jail expansion that would prevent it from being a valid petition?"The Law Director, Respondent Merchant, replied that there were "two minor discrepancies" between the petition and Bedford Heights' Charter provisions: The proposed petition did not have a place to indicate the signer's voting precinct, nor did it have the required circulator affidavit, only a circulator statement, as provided under the Ohio Revised Code.The Law Director further stated: "These minor variances from the charter, which would prevail over state law, do not appear to be of such substantial nature that it would render the form of the petition invalid."(February 3, 2003 memorandum from Charles Merchant to James Cody, attached to Mr. Cody's September 15, 2003 brief in opposition.)

{¶7} On May 17, 2003, Mr. Cody submitted an "Initiative Petition" on the state form to the Clerk of Council.¹The proposed ordinance was entitled "Correctional Facility Expansion" and first sought to repeal OrdinanceNo. 2003-0007 which authorized the mayor to execute a cooperative agreement for federal funding for the expansion of the jail.The petition then sought to enact an ordinance preventing the expansion of the existing jail or the construction of a new jail without the vote of the electorate.This petition has a sufficient number of signatures.However, none of the part petitions had a required circulator affidavit; rather, they all had a circulator statement in which the signer swears to nothing.The Clerk then asked the Law Director to review the petition for legal sufficiency.

{¶8} On May 27, 2003, the Law Director opined that the petition was not legally sufficient for the following reasons.First, this petition improperly joined an initiative petition with a referendum petition, the repeal of OrdinanceNo. 2003-0007; the Law Director opined that the Charter does not allow the combination of such petitions.Also the title of the petition was misleading because it was captioned only as an initiative petition and did not mention that was also a referendum petition.As a referendum petition, it was untimely.Final passage for Ordinance 2003-0007 was January 21, 2003, but the petition's submission date, May 17, 2003, was for more than thirty days after passage, as required by the Charter.Moreover, none of the part petitions had a required circulator affidavit.The circulator statements were not sufficient and rendered the petition invalid.(Attachment F of the complaint.)Therefore, the Clerk had no duty to refer the petition to Council.Accordingly, Respondent Stahl notified Council that the Law Director had opined that the petition was legally insufficient and "no further action need be taken ***."(May 27, 2003 Memorandum from Patricia Stahl, attached to complaint.)

{¶9} On June 12, 2003, the Petitioners' Committee, the Committee for a Better Bedford Heights, relying on Section 12.01.03 of the Charter, submitted a written demand to Respondent Stahl to place the subject initiative ordinance on the November 4, 2003 ballot.The next day the Committee sent a similar demand to the Law Director.In response the Law Director informed the Committee through a letter to Mr. Cody that because the prerequisite of a legally sufficient petition was not fulfilled, Section 12.01.03 did not apply and there was no duty to take any further action on the petition.(Exhibits D, E and F to the complaint.)

{¶10} This application for a writ of mandamus followed.

{¶11} The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2)the respondent must have a clear legal duty to perform the requested relief and (3) there must be no adequate remedy at law.State ex rel. Ney v. Niehaus(1987), 33 Ohio St.3d 118, 515 N.E.2d 914.Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear.It should not issue in doubtful cases.State ex rel. Taylor v. Glasser(1977), 50 Ohio St.2d 165, 364 N.E.2d 1;State ex rel. Shafer v. Ohio Turnpike Commission(1953), 159 Ohio St. 581, 113 N.E.2d 14;State ex rel. Connole v. Cleveland Board of Education(1993), 87 Ohio App.3d 43, 621 N.E.2d 850;andState ex rel. Dayton-Oakwood Press v. Dissinger(1940), 32 Ohio Law Abs. 308.

{¶12} The failure to have the circulator affidavits on the part petitions renders the petition invalid.The Supreme Court of Ohio has long and consistently held that the laws governing elections are mandatory and must be strictly complied with.State ex rel. Minor v. Curtis, Deputy State Supervisors of Elections for Erie Cty.(1920), 101...