Storegard v. Board of Elections of Cuyahoga County

• Decision Date: 23 October 1969
• Citation: 22 Ohio Misc. 5,255 N.E.2d 880,50 O.O.2d 228
• Parties: , 50 O.O.2d 228, 51 O.O.2d 28 Gertrude L. STOREGARD et al., Plaintiffs, v. The BOARD OF ELECTIONS OF CUYAHOGA COUNTY, Ohio, et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 5

22 Ohio Misc. 5

255 N.E.2d 880, 50 O.O.2d 228, 51 O.O.2d 28

Gertrude L. STOREGARD et al., Plaintiffs, v. The BOARD OF ELECTIONS OF CUYAHOGA COUNTY, Ohio, et al., Defendants.

Court of Common Pleas of Ohio, Cuyahoga County.

Oct. 23, 1969.

[255 N.E.2d 881] Miller, Folk & Schutz, Cleveland, for plaintiffs. Otto W. Schutz, Cleveland, of counsel.

John T. Corrigan, Pros. Atty., John Dowling, Asst. Pros. Atty., County of Cuyahoga, Cleveland, Ford Noble, Law Director, Parma Heights, for defendants.

MEMORANDUM OF OPINION

WHITING, Judge.

Plaintiffs circulated and filed an initiative petition in the City of Broadview Heights, State of Ohio, proposing the repeal of a zoning ordinance duly passed by the City Council. After certification of the petition to the Board of Elections a protest was filed. Upon hearing the protest, the Board of Elections allowed the same and notified the petitioners that the issue will not be placed on the ballot at the general election to be held in Broadview Heights on November 4, 1969.

Plaintiffs seek an order directing the Board of Elections to place the issue on the ballot for the November 4, 1969 election.

Defendants are the Board of Elections of Cuyahoga County and its members. In essence their position is (1) that plaintiffs' 'initiative petition' seeks the repeal of an ordinance and therefore is in fact a referendum petition and as such can not lawfully be submitted to the electorate under the provisions of the city charter and the state code relating to initiative petitions; (2) that the City Clerk of Broadview Heights prematurely certified the petition to the Board of Elections in disregard of the tenday delay required by § 731.28 of the Ohio Revised Code; and (3) that the petition was not kept open for public inspection for ten days prior to its certification to the Board of Elections, as defendants contend is required by § 731.34 of the Revised Code. A fourth stated objection that the petitioners did not circulate copies of the zone map and of the ordinance proposed to be repealed has been withdrawn by the defendants.

Repeal By Initiative Procedure

There is a clear distinction between initiative and referendum. One might therefore assume that initiative procedure may not be utilized to accomplish what is by definition a referendum. Such is not the law of Ohio. In the case of State ex rel. Sharpe v. Hitt, 155 Ohio St. 529, 99 N.E.2d 659 (1951), it was held (Syllabus 3):

'The electors of a municipality may by the initiative enact a measure conflicting with or repealing legislation previously passed by the municipal council, so long as the subject matter of such initiative ordinance is within the powers of the municipality to control by the legislative procedure.'

It could be argued that the rule in the Sharpe case applies only when the ordinance sought to be repealed was enacted as an emergency measure pursuant to a charter provision or Ohio Revised Code § 705.15 and therefore is not subject to referendum. However, the language of the opinion and its approval of Judge Allen's dissenting argument in State ex rel. Smith v. City of Fremont, 116 Ohio St. 469, 157 N.E. 318 (1927), indicates the contrary. Ohio has taken the view that both initiative and referendum powers are reserved to the people 'on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action.' State ex rel. Sharpe v. Hitt, supra, (Syl. 1). Though the referendum may be restricted in scope, the initiative is not. State ex rel. Sharpe v. Hitt, supra, at page 540, 99 N.E.2d 659. This is confirmed in Dubyak v. Kovach, 164 Ohio St. 247, 129 N.E.2d 809 (1955), where the opinion points out that the facts in the Sharpe case involved an ordinance passed under an emergency clause and therefore not subject to referendum, but went on to say without qualification (p. 252, 129 N.E.2d p. 813):

'This court held that, since the initiative applies to ordinances and other measures which can be enacted by a city council, and since such council has the power to pass an ordinance repealing a previous ordinance, such a repealing ordinance can be submitted to the electors under an initiative petition. It would seem there can be no question of the soundness of this rule.'

Also see Russell v. Linton, Ohio Com.Pl., 115 N.E.2d 429, 67 Ohio Law Abst. 132 (1953).

Petitioners therefore may make use of the initiative procedure provided by the charter of Broadview Heights and the Revised Code to accomplish what would otherwise be designated as a referendum. The fact that the charter distinguishes between the two, and requires more signatures to a referendum petition than to an initiative petition, is of no significance. The Revised Code makes numerous distinctions between initiative and referendum. Those distinctions did not alter the decision in the Sharpe case.

Petition Certified After 10 Days

Aside from designating the number of signatures required for an initiative petition, the charter of Broadview Heights merely specifies that the provisions of the Revised Code be followed. Section 731.28 of the Code specifies, in part:

'When a petition is filed with the city auditor or village clerk * * * such * * * clerk shall, after ten days, certify the text of the proposed ordinance or measure to the board of elections. * * *

'The board shall submit such proposed ordinance * * * (to the electors) at the next succeeding general election, occurring subsequent to ninety days after the certifying of such initiative petition * * *.'

The next general election in Broadview Heights will be on November 4, 1969. In order to meet the ninety-day requirement of R.C. § 731.28, the petition had to be certified to the Board of Elections on or before August 5, 1969. It was certified on August 5, 1969. However, defendants contend that the City Clerk prematurely certified the petition.

Defendants' position is that the petition was not filed until Monday, July 28, 1969, at which time the City Clerk observed the document in the safe at City Hall. They urge that, under R.C. § 731.28, certification therefor could not be made until August 8th. Plaintiffs contend that the petition was filed at City Hall on Thursday, July 24th, with the President of City Council. In plaintiffs' view, R.C. § 731.28 therefore permits certification on August 5th.

Broadview Heights does not have a city auditor. It does have a City Clerk with whom, it has been stipulated, all petition papers are to be filed. However, the clerk was on vacation and absent from Broadview Heights on Thursday and Friday, July 24th and 25th, 1969. The record does not indicate that any one else was designated to perform the duties of the City Clerk during her absence.

At 1:30 P.M. on Thursday, July 24th, during the regular and usual hours for conducting public business, the petitioners arrived to file their petition at the City Hall. Upon their discovery of the unforeseen absence of the City Clerk, and after consulting with the Law Director they (as stipulated) 'filed' the petition with the President of Council. By this time it was 10:45 P.M., but the City Hall was still open for the conduct of public business. The President of Council accepted the petition in the presence of the Mayor and on the advice of the Law Director. He gave the petitioners a receipt. He then placed the petition in the safe at City Hall where it remained except for one day when the City Clerk took it to the Board of Elections to verify signatures.

The Court finds that this activity comprised a filing on July 24th within the meaning of the Revised Code and, insofar as it is in evidence, the charter of the City of Broadview Heights. The city administration acted through the President of Council to perform, on behalf of the City, the ministerial duty of an absent clerk. As observed by the Supreme Court of Ohio, provisions for municipal initiative should be liberally construed in favor of the power reserved to the people so as to permit rather than preclude the exercise of such power, and (State ex rel. Sharpe v. Hitt, supra, 155 Ohio St. at page 535, 99 N.E.2d at page 662):

'* * * the object clearly sought to be attained should be promoted rather than prevented or obstructed.'

Certainly no harm can come from permitting the President of Council to perform this function under the circumstances. On the other hand, a Holding to the contrary would be in disregard of the admonition of the Supreme Court in the Sharpe case.

For further assistance in ascertaining the intent of the legislature, we may refer to the statutory procedure for the filing of initiative petitions in villages, as distinguished from their filing in cities. The code provides that they be filed with the village clerk (R.C. § 731.28) and further provides that when the village clerk is absent, council shall appoint 'one of its members' to perform his duties (R.C. § 733.27). A member of city council, and especially the president of city council, would therefore seem to be a proper person to perform the duties of an absent City Clerk in default of any provision to the contrary by ordinance, resolution or charter. No such provision to the contrary appears in evidence.

In considering this issue the Court feels it should give some weight to the argument that initiative procedure is for the benefit of the ordinary citizen, who is generally inexperienced in such matters and is no match for public officials daily involved in the intricate technicalities of municipal law and administration. 'You can't fight City Hall,' the saying goes. By its very nature, resort to the initiative often pits the ordinary citizen against 'City Hall.' The instant case is no exception. Plaintiffs seeking to file their petition on behalf of 508 electors during regular office hours, were suddenly confronted by the clerk's unforeseen absence and the fact that time did not permit them to await her return to duty several days later....