The State Ex Rel. Julnes v. South Euclid City Council

• Decision Date: 07 September 2011
• Docket Number: No. 2011–1387.,2011–1387.
• Parties: The STATE ex rel. JULNES et al.v.SOUTH EUCLID CITY COUNCIL et al.
• Court: Ohio Supreme Court

130 Ohio St.3d 6

955 N.E.2d 363

2011 -Ohio- 4485

The STATE ex rel. JULNES et al.

v.SOUTH EUCLID CITY COUNCIL et al.

No. 2011–1387.

Supreme Court of Ohio.

Submitted Aug. 29, 2011.Decided Sept. 7, 2011.

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, Columbus, and J. Corey Colombo, for relators.Michael P. Lograsso, South Euclid Director of Law; and Walter & Haverfield, L.L.P., and R. Todd Hunt, Cleveland, for respondents.Berns, Ockner & Greenberger, L.L.C., Sheldon Berns, and Benjamin J. Ockner, Beachwood, for intervening respondent.PER CURIAM.

[Ohio St.3d 6] {¶ 1} This is an expedited election action for a writ of mandamus. Relators seek to compel a clerk of a city council to determine that a referendum petition is valid and sufficient, to compel the clerk to communicate that determination to the city council, and to compel the city council to either repeal the ordinance that is subject to the referendum or submit the ordinance to the city's electors at the November 8, 2011 election. Because relators have established their entitlement to the performance of the requested acts, we grant the writ.

Facts

{¶ 2} On June 27, 2011, respondent South Euclid City Council enacted Ordinance No. 05–11, which approved the request of intervening respondent, FISE, L.L.C. (“FISE”), by amending the zoning for certain property from Class R–75 (One Family Residential District) to C–2 (General Commercial District) and declaring an emergency. Section 3 of the ordinance contained the following emergency declaration:

{¶ 3} “That this Ordinance is deemed to be an emergency measure necessary for the immediate preservation of the public peace, health, safety, and general welfare and for [the] further reason that this Ordinance is necessary for the City to improve its economic development opportunities; and to expedite the acquisition of property for use as public green space. Wherefore, this Ordinance shall take effect and be in force from and after the earliest period allowed by law and upon signature of the Mayor.”

[Ohio St.3d 7] {¶ 4} On June 30, 2011, Carla Rautenberg and Susan Miller requested and received from respondent Keith A. Benjamin, the Clerk of the South Euclid City Council, two original certified copies of Ordinance No. 05–11, one of which they filed with the clerk and the other of which they attached to a referendum petition on the ordinance. The clerk posted the copy of the ordinance submitted to him by the referendum petitioners on a bulletin board in city hall.

{¶ 5} Relators, Anna Julnes, Christina Elswick, Joseph Liptow, Steven R. Pressman, and William E. Schuermann, are residents and electors of South Euclid and are the committee members for the referendum petition concerning Ordinance No. 05–11. On July 11, 2011, relators filed the referendum petition with the clerk of council. The referendum petition sought the submission of Ordinance No. 05–11 to the city's electorate for approval or rejection.

{¶ 6} The clerk of council held the petition for ten days and then transmitted it, with a certified copy of Ordinance No. 05–11, to the Cuyahoga County Board of Elections. The board of elections determined that the petition contained sufficient valid signatures and returned it to the clerk. On August 5, FISE submitted a protest to the clerk contesting the validity of the petition. Upon the advice of the city law director, the clerk then determined that the petitioners had failed to file a certified copy of the ordinance with the city's director of finance and reported this conclusion to the city council. On August 8, 2011, in a special meeting, the city council decided not to submit Ordinance No. 05–11 to the electorate because the relators had not filed a certified copy of the ordinance with the city's finance director.

{¶ 7} Four days later, on August 12, relators filed this action. In their amended complaint filed three days later, relators request a writ of mandamus to compel Clerk of Council Benjamin “to forthwith determine that the Referendum Petition is valid and sufficient and communicate such determination to Respondent Council” and to compel the South Euclid City Council “to either forthwith repeal Ordinance 05–11 or forthwith submit it to the electors of South Euclid for their approval or rejection at the November 8, 2011 general election.” We granted FISE's motion to intervene as an additional respondent, and the city council and its clerk filed an answer. The parties submitted evidence and briefs in accordance with the accelerated schedule in S.Ct.Prac.R. 10.9.

{¶ 8} This cause is now before this court for our consideration of the merits.

Legal Analysis

Mandamus

{¶ 9} Relators claim that they are entitled to a writ of mandamus to compel the South Euclid City Council and its clerk to perform the requested acts concerning their referendum petition. To be entitled to the requested writ, relators must [Ohio St.3d 8] establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the city council and its clerk to provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Moore v. Malone, 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812, ¶ 20. Because of the proximity of the November 8 election, relators lack an adequate remedy in the ordinary course of law. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 25.

{¶ 10} Relators allege that they have satisfied the remaining requirements by demonstrating that the city council and the clerk abused their discretion and clearly disregarded applicable law by not treating their petition as a valid referendum petition.

R.C. 731.32 Precirculation Requirement

{¶ 11} Relators contend that the city council and the clerk abused their discretion and clearly disregarded R.C. 731.32 by determining that relators had not complied with the statute by failing to file a certified copy of the ordinance with the city's director of finance before they circulated the petition.

{¶ 12} The South Euclid Charter provides that for initiative, referendum, and recall petitions, “[t]he manner of signing, the method of circulating, and the form and requirements as to the affidavit, and the other requirements of general law regulating initiative and referendum and recall petitions shall apply in this City except as otherwise provided in this Charter.” (Emphasis added.) Section 4, Article VIII, South Euclid Charter.

{¶ 13} Because the charter is silent on precirculation copies of ordinances for initiative and referendum petitions, R.C. 731.32 sets forth the applicable procedure. See State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 477, 764 N.E.2d 971 (“The statutory procedure governing municipal initiative and referendum in R.C. 731.28 through 731.41 applies to municipalities where the charter incorporates general law by reference, except where the statutory procedure conflicts with other charter provisions”).

{¶ 14} “R.C. 731.32 does not expressly permit substantial compliance, so it requires strict compliance.” State ex rel. Barletta v. Fersch, 99 Ohio St.3d 295, 2003-Ohio-3629, 791 N.E.2d 452, ¶ 17. “The requirement of [R.C.] 731.32 * * * is mandatory, and in the absence of compliance therewith no duty falls upon the city clerk to receive and file with the board of elections a referendum petition otherwise valid.” State ex rel. Mika v. Lemon (1959), 170 Ohio St. 1, 9 O.O.2d 304, 161 N.E.2d 488, paragraph two of the syllabus.

{¶ 15} R.C. 731.32 provides:

{¶ 16} “Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or files a referendum petition against any [Ohio St.3d 9] ordinance or measure shall, before circulating such petition, file a certified copy of the proposed ordinance or measure with the city auditor or the village clerk.”

{¶ 17} South Euclid does not have a city auditor. In the absence of an official so designated, the referendum petition must be filed “with the official who in fact performs the duties of city auditor.” State ex rel. Donahue v. Bellbrook (1975), 44 Ohio St.2d 36, 73 O.O.2d 157, 336 N.E.2d 635, syllabus. The issue is thus whether the clerk or, as respondents assert, the director of finance “performs the duties customarily performed by the officials designated in [R.C.] 731.32.” Mika, 170 Ohio St. at 5, 9 O.O.2d 304, 161 N.E.2d 488.

{¶ 18} In many respects, the South Euclid Director of Finance performs the significant fiscal duties that a city auditor otherwise would. Section 3, Article V of the South Euclid Charter provides the following regarding the director of finance:

{¶ 19} “The Director of Finance shall be the head of the Finance Department and fiscal officer of the City. He shall serve the Mayor and the Council as financial advisor in connection with municipal affairs. He shall keep the financial records of the City, exhibiting accurate statements of all moneys received and expended, of all property owned by the City, and of all taxes and assessments. He shall be custodian of all public money of the City, shall keep and preserve such money in the place or places authorized by ordinance, and shall disburse the same as may be required by law or ordinance. He shall not allow the amount set aside for any appropriation to be overdrawn or drawn for any other purpose. He may examine and audit the accounts of all officers, employees and departments. He may require evidence that the amount of any claim presented to him is due. He shall perform such other duties consistent with his office as the Mayor or the Council may direct.”

{¶ 20} Many of these specified duties are usually performed by a city auditor. See R.C. 733.11 (“The city auditor shall keep the books of the city and exhibit accurate statements of all moneys received and expended, of all property owned by the city and the income derived therefrom, and of all taxes and assessments”); R.C. 733.12 (“At the end of...