State ex rel. Gil-Llamas v. Hardin (Slip Opinion) , 2021 Ohio 1508 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Gil-Llamas v. Hardin, Slip Opinion No. 2021-Ohio-1508.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
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SLIP OPINION NO. 2021-OHIO-1508THE STATE EX REL. GIL-LLAMAS ET AL. v. HARDIN, PRESIDENT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Gil-Llamas v. Hardin, Slip Opinion No.
2021-Ohio-1508.]
Elections—Mandamus—Writ of mandamus sought to compel Columbus City
Council to submit to city electors a proposed municipal ordinance on the
May 4, 2021 primary-election ballot—Council abused its discretion in
finding relators’ initiative petition insufficient—Although relators are not
entitled to writ ordering council to place proposed ordinance on the May 4
ballot, relators are entitled to limited writ ordering council to find initiative
petition sufficient and to proceed with process for an initiated ordinance
under Columbus City Charter—Limited writ granted.
(No. 2020-1466—Submitted March 30, 2021—Decided April 29, 2021.)
IN MANDAMUS.
__________________
FISCHER, J.
SUPREME COURT OF OHIO
{¶ 1} Relators, Irene Gil-Llamas, Christina L. Gonzaga, Tyrone Spence,
Udell Hollins, and ProEnergy Ohio, L.L.C., seek a writ of mandamus to compel
respondents, the members of the Columbus City Council—Columbus City Council
President Shannon G. Hardin, President Pro Tempore Elizabeth Brown, and council
members Rob Dorans, Mitchell J. Brown, Shayla Favor, Emmanuel V. Remy, and
Priscilla R. Tyson (collectively, “the council”)—to submit to city of Columbus
electors a proposed municipal-ordinance initiative on the May 4, 2021 primary-
election ballot. The council declined to submit the initiative to the electors because
it found relators’ initiative petition deficient in form.
{¶ 2} We hold that relators have demonstrated by clear and convincing
evidence that the council abused its discretion in finding relators’ initiative petition
insufficient. Although relators are not entitled to the full relief that they seek in
mandamus—a writ ordering the council to place the proposed ordinance on the May
4, 2021 primary-election ballot—we hold that relators are entitled to a limited writ
of mandamus ordering the council to find the petition sufficient and to proceed with
the process for an initiated ordinance under Columbus City Charter Section 43-1 et
seq.
I. BACKGROUND
A. Overview of the Initiative Process Under the Columbus City Charter
{¶ 3} Under the home-rule powers granted to municipalities by the Ohio
Constitution, a municipality’s charter may contain provisions that govern the
initiative and referendum process for local ordinances. State ex rel. Harris v.
Rubino, 155 Ohio St.3d 123, 2018-Ohio-3609, 119 N.E.3d 1238, ¶ 15-16; see
generally Ohio Constitution, Article XVIII, Sections 3 and 7. The Columbus City
Charter does so. See Charter Sections 42 through 42-15 and 43 through 43-4.
{¶ 4} When an initiative petition proposing a Columbus ordinance is filed
with the city, the city attorney must advise the city council on the legal sufficiency
of the petition. Id. at Section 42-9. Further, the city clerk must forward the petition
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to the board of elections and the board must determine the number of valid
signatures on the petition. Id. Upon receipt of a report regarding the number of
valid signatures on the petition, the council must determine the sufficiency of the
petition. Id. at Section 43-1. If the council finds the petition sufficient, it must vote
within 30 days to either adopt the proposed ordinance or submit it to a vote of the
city’s electors. Id.B. Relators’ Proposed Ordinance
{¶ 5} Gil-Llamas, Gonzaga, Spence, and Hollins are members of a
committee formed by ProEnergy Ohio, L.L.C., whose purpose is to gather
signatures for an initiative petition proposing a Columbus ordinance and to support
the ordinance’s passage. The proposed ordinance would require the city to establish
four separate funds totaling $87 million, including (1) a $10 million “Energy
Conservation and Energy Efficiency Fund,” (2) a $10 million “Clean Energy
Education and Training Fund,” (3) a $10 million “Minority Business Enterprise
Clean Energy Development Fund,” and (4) a $57 million “Columbus Clean Energy
Partnership Fund.”
{¶ 6} On October 16, 2020, relators filed their initiative petition with the
city clerk under Columbus City Charter Section 42-7. As required by Charter
Section 42-9, the city clerk forwarded a copy of the petition to the city attorney and
the Franklin County Board of Elections. The board certified the petition as
containing a sufficient number of valid signatures for placement on the ballot. The
city attorney, however, advised the council that the petition was deficient under
Charter Section 42-2(e), because it did not include a title that sufficiently described
the content of the proposed ordinance. Consistent with the city attorney’s
advisement, the council found that relators’ initiative petition failed to meet the
mandatory requirements established in the Columbus City Charter and passed an
ordinance stating that relators’ initiative would not be submitted to the Columbus
electors.
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{¶ 7} Relators commenced this action on December 4, 2020, seeking a writ
of mandamus to compel the council to submit the proposed ordinance to the electors
on the May 4, 2021 primary-election ballot. This court denied the council’s motion
to dismiss, granted an alternative writ, and set a schedule for the submission of
evidence and merit briefs. 161 Ohio St.3d 1424, 2021-Ohio-320, 162 N.E.3d 803.
The parties filed evidence and merit briefs. Relators also filed “supplemental
evidence” and “amended evidence” beyond the deadline for the submission of
evidence and without leave of court. Relators filed objections to the council’s
evidence, and the council filed a motion to strike relators’ supplemental evidence.
Relators also filed a motion to expedite this matter.
II. EVIDENTIARY ISSUES
{¶ 8} Before we address the merits of this case, we resolve several
evidentiary issues that have arisen during the course of this litigation. For the
reasons stated below, we overrule relators’ objections to the council’s evidence,
grant the council’s motion to strike relators’ supplemental evidence, and sua sponte
strike relators’ amended evidence.
A. Relators’ Objections to the Council’s Evidence
{¶ 9} Relators object on relevance grounds to two pieces of evidence
submitted by the council: (1) Exhibit A-5, which is a copy of an envelope
postmarked November 25, 2020, and addressed to Gonzaga at the Columbus
address listed on the precirculated copy of relators’ initiative petition, and which is
marked “return to sender” and has a forwarding address in Houston, Texas, and (2)
Exhibit B, which is a certified copy of a Franklin County indictment of “John A.
Clark Jr. AKA John Alexander Clarke Jr.” for felony election falsification and
felony tampering with records. We overrule relators’ objections to that evidence.
{¶ 10} Relators argue that Exhibit A-5, the copy of the envelope submitted
by the council, is not relevant to whether Gonzaga was a Columbus elector when
the initiative petition was circulated for signatures, because the mailing of the
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envelope occurred after the initiative petition was filed. Relators also argue that
Exhibit A-5 is “a transparent attempt to accuse the Relators of lying that Ms.
Gonzaga was a resident and elector of the City of Columbus,” and is inadmissible
under Evid.R. 403(A) because its probative value is substantially outweighed by
the danger of unfair prejudice and confusion of the issues. The council argues that
Exhibit A-5 is directly relevant to whether Gonzaga was a qualified elector of
Columbus.
{¶ 11} Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” (Emphasis
added.) Evid.R. 401. We agree with the council that the envelope exhibit is
relevant in this matter and is thus admissible under Evid.R. 402 (relevant evidence
is generally admissible) and that its probative value outweighs any alleged undue
prejudice and does not confuse the issues, Evid.R. 403(A). Therefore, we overrule
relators’ objections to the admission of the council’s Exhibit A-5.
{¶ 12} Relators also argue that the council’s Exhibit B, the certified copy of
the indictment, is inadmissible because it is irrelevant and is unduly prejudicial and
confuses the issues before this court. The council argues that this evidence is
relevant to its argument that the proposed ordinance’s title is misleading. It is true
that Exhibit B has little relevance regarding whether the proposed ordinance’s title
is misleading or is otherwise invalid under Columbus City Charter Section 42-2(e).
But this court considers only relevant, material, and competent evidence. See State
v. Bays, 87 Ohio St.3d 15, 28-29, 716 N.E.2d 1126 (1999) (the court is presumed
to have considered only relevant, material, and competent evidence; the court is
presumed to have been unaffected by allegedly inflammatory evidence). Therefore,
we overrule relators’ objection to the council’s Exhibit B.
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B. The Council’s Motion to Strike Relators’ Supplemental Evidence
{¶ 13} On March 2, 2021, relators filed supplemental evidence—an
affidavit of relator Gonzaga—to rebut any assertion that Gonzaga was not a
qualified elector of Columbus, Ohio. The council moved to strike that evidence as
untimely because it was filed after this court’s deadline for submitting evidence.
Relators oppose the council’s motion to strike the evidence, arguing that they are
entitled to present rebuttal evidence under this court’s decision in Phung v. Waste
Mgt. Inc., 71 Ohio St.3d 408, 410-411, 644 N.E.2d 286 (1994), and that in any
event, S.Ct.Prac.R. 3.13 allows them to amend their evidence. Thus, relators argue
that their supplemental evidence was timely filed. Relators are wrong.
{¶ 14} This court’s decision in Phung is inapposite. In Phung, we held that
in the context of a trial, a party has “an unconditional right” to present rebuttal
evidence in response to evidence submitted in the opposing party’s case-in-chief.
Id. at 411. But this is an extraordinary-writ proceeding in which this court ordered
the parties to submit “any evidence they intend[ed] to present” by a deadline, 161
Ohio St.3d 1424, 2021-Ohio-320, 162 N.E.3d 803. And relators’ reliance on
S.Ct.Prac.R. 3.13(A) is misplaced. Although that rule allows a party to “make
corrections or additions to a previously filed document,” division (B) of the rule
provides that the revised document “shall be filed within the time permitted by the[]
rules,” S.Ct.Prac.R. 3.13(B). Because we set a deadline for the submission of
evidence under S.Ct.Prac.R. 12.05, which relators failed to meet, relators’
submission of its supplemental evidence was untimely. Finally, relators failed to
seek leave of this court to file the supplemental evidence. Accordingly, we grant
the council’s motion to strike relators’ supplemental evidence.
C. We Strike Relators’ Untimely Amended Evidence
{¶ 15} Relators filed their amended evidence to make corrections and add
to their earlier filed evidence. Relators purported to file their amended evidence
under S.Ct.Prac.R. 3.13(A), declaring that the submission “relat[es] back” to their
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original evidence filing. But relators are mistaken, as there is no provision in
S.Ct.Prac.R. 3.13(A) allowing evidence to relate back to earlier filed evidence.
Because relators’ submission of the amended evidence was untimely, they had to
first seek leave of this court before they submitted their amended evidence.
Because they did not do so, we will not consider the amendments to relators’
evidence submitted on March 11, 2021.
D. Relators’ Argument that Certain Facts in Their Complaint Are
Uncontroverted
{¶ 16} Relators also argue that even in the absence of their supplemental
and amended evidence, Gonzaga’s status as a qualified elector of Columbus and
the content of the signed version of their initiative petition filed with the city on
October 16, 2020, are still uncontroverted. Specifically, relators argue that because
the council did not file an answer to relators’ complaint within 14 days after this
court denied the council’s motion to dismiss the complaint, the facts alleged by
relators in their complaint should be deemed admitted under Civ.R. 8(D). See also
Civ.R. 12(A)(2)(a) (when a defendant files a motion to dismiss in lieu of an answer
to a complaint, the responsive pleading is due within 14 days after notice of the
court’s denial of the motion).
{¶ 17} In original actions filed in this court, the Rules of Civil Procedure
supplement this court’s rules of practice “unless [they are] clearly inapplicable.”
S.Ct.Prac.R. 12.01(A)(2)(b). In this case, Civ.R. 12(A)(2)(a) is clearly
inapplicable. When we denied the council’s motion to dismiss, we granted an
alternative writ and set a schedule for the presentation of evidence and briefing
under S.Ct.Prac.R. 12.05. The grant of an alternative writ supersedes the operation
of Civ.R. 12(A)(2)(a). Simply put, our rules do not contemplate an answer being
filed after we grant an alternative writ. When denying a motion to dismiss and
ordering a respondent to file an answer to the complaint in an original action, this
court has specified such a procedure and not granted an alternative writ. See, e.g.,
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State ex rel. Moir v. Kovack, 142 Ohio St.3d 1474, 2015-Ohio-2104, 31 N.E.3d
653; State ex rel. Schiffbauer v. Banaszak, 141 Ohio St.3d 1486, 2015-Ohio-842,
26 N.E.3d 822. Accordingly, the council’s failure to file an answer to the
complaint is of no consequence here.
{¶ 18} In sum, the factual allegations in relators’ complaint are not deemed
admitted. The evidence properly before this court consists of relators’ evidence
filed on February 16, 2021, and the council’s evidence filed on February 23.
Relators’ supplemental and amended evidence is stricken.
III. ANALYSIS OF RELATORS’ MANDAMUS CLAIM
{¶ 19} To be entitled to a writ of mandamus, relators must establish (1) a
clear legal right to the requested relief, (2) a clear legal duty on the part of
respondents to provide it, and (3) the lack of an adequate remedy in the ordinary
course of the law. State ex rel. Oberlin Citizens for Responsible Dev. v. Talarico,
106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, ¶ 11. Relators must prove
those requirements by clear and convincing evidence. State ex rel. Scott v. Franklin
Cty. Bd. of Elections, 139 Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d 697, ¶ 14.
{¶ 20} In order for relators to establish a clear legal right to relief and a clear
legal duty of the council to provide it, relators must show that the council engaged
in fraud or corruption or abused its discretion in refusing to submit the proposed
ordinance for placement on the ballot. See State ex rel. Nauth v. Dirham, 161 Ohio
St.3d 365, 2020-Ohio-4208, 163 N.E.3d 526, ¶ 11-13. Because relators do not
allege fraud or corruption, this court must determine whether relators have shown
that the council abused its discretion. Id. at ¶ 13. We hold that relators have met
that burden.
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A. The Council Abused Its Discretion in Finding Relators’ Petition
Insufficient
1. Absence of the Signed Petition Is Not Fatal to Relators’ Claim
{¶ 21} The council argues that relators cannot show an entitlement to
mandamus relief because the signed version of the initiative petition that relators
filed with the city of Columbus on October 16, 2020, is not in evidence. Relators
included with their complaint and evidence a copy of only the precirculated
petition. Although relators attempted to file with this court the signed version of
the petition as Exhibit 10 to their amended evidence, as discussed above, this court
must disregard the amended evidence because it was untimely filed without leave
of court, see 161 Ohio St.3d 1424, 2021-Ohio-320, 162 N.E.3d 803. Nevertheless,
the question of the sufficiency of the petition is still before this court.
{¶ 22} Relators submitted as evidence the precirculated copy of the petition,
which was filed with the city clerk in October 2019. The parties do not dispute that
relators also filed with the city clerk a copy of the initiative petition with the
electors’ signatures on October 16, 2020, which was forwarded to the city attorney
for review. The city attorney reviewed the copy and reported the alleged
deficiencies in the petition to the council on November 6, 2020. Notably, the city
attorney stated: “The form and content of the part-petitions filed on October 16,
2020 are the same as that of the pre-circulation filing * * *.” Thus, we may examine
the content of the precirculated version of the petition submitted as evidence in
order to determine the sufficiency of the signed version of the petition.
2. The Council Abused Its Discretion in Determining that the Petition Is
Insufficient for Failure to Comply with the Columbus City Charter’s Requirement
for the Title of the Proposal
{¶ 23} The council specifically rejected relators’ proposal for placement on
the ballot for failure to comply with the title requirement for proposed ordinances
under Section 42-2(e) of the Columbus City Charter. More specifically, the council
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argues that the proposed ordinance’s title omits a reference to (1) the establishment
of a “Minority Business Enterprise Clean Energy Development Fund” and (2) the
fact that the ordinance would delegate the city’s contracting authority to private
parties.
{¶ 24} The purpose of the title requirement is to immediately alert signers
to the nature of the proposed legislation. See State ex rel. Carrier v. Hilliard City
Council, 144 Ohio St.3d 592, 2016-Ohio-155, 45 N.E.3d 1006, ¶ 12. While
omitting a title altogether is a fatal defect “because it interferes with a petition’s
ability to fairly and substantially present the issue and might mislead electors,”
Christy v. Summit Cty. Bd. of Elections, 77 Ohio St.3d 35, 38, 671 N.E.2d 1 (1996),
the council does not argue that the proposed ordinance completely lacks a title.
Rather, the council contends that the proposed ordinance’s title does not adequately
summarize the totality of its substance. The council further emphasizes that the
title requirement in Charter Section 42-2(e) is more demanding than those for
municipal-ordinance-initiative titles under R.C. 731.31.
{¶ 25} Although Charter Section 42-2(e), which requires a title to “clearly
and without argument describe the proposed ordinance,” controls over the general
provisions regarding ordinance initiatives in the Revised Code, see R.C. 731.41,
the council’s argument that relators’ title omits required information is problematic,
if not unreasoned, on its face. The proposed ordinance’s title, which is more than
150 words long as it is, already sufficiently describes the substance of the proposed
ordinance. The title states that the proposed ordinance would require the city
auditor to transfer from the general fund (1) $10 million to an “Energy Conservation
and Energy Efficiency Fund,” (2) $10 million to a “Clean Energy Education and
Training Fund,” (3) $10 million for the purpose of funding a minority-business-
development program, and (4) $57 million for the purpose of funding an electricity-
subsidy program for Columbus residents. The title therefore describes the
ordinance and what it would principally do: provide for the expenditure of $87
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million for specific purposes. The title more than adequately describes the
substance of the proposed ordinance.
{¶ 26} The omission in the title of the name of the minority-business-
development fund sought to be created (the “Minority Business Enterprise Clean
Energy Development Fund”) does not make the title’s description of the ordinance
inaccurate. Nor does the title’s lack of a specific reference to the fact that the
ordinance would potentially cause funds to be transferred to private entities for
expenditure render the title deficient.
{¶ 27} At its core, the proposed ordinance calls for the city to allocate a
significant amount of public funds for specific purposes relating to clean energy
and minority-business enterprises involving clean energy. The title states the
amount of money that the ordinance would commit the city to spend and the
purposes of the expenditures. While the mechanics of how the money would be
spent is significant as a matter of city policy, the omission of this detail from the
title of the proposed ordinance does not make the title deficient under Section 42-
2(e) of the Columbus City Charter.
{¶ 28} Perhaps recognizing this, the council essentially argues that the title
is deficient because it does not fully capture every facet of the proposed ordinance.
But the Columbus City Charter requires a title, not a summary. See Charter Section
42-2(e) and (f).
{¶ 29} Indeed, Charter Section 42-2(e) specifically requires a proposal to
have a title and Charter Section 42-2(f) expressly rejects the requirement of a
summary. It is only in the event that the council finds that an initiative petition
satisfies the Charter’s requirements and submits the proposed ordinance to the
electors that “city council shall prescribe a brief summary of [the proposed
ordinance], which shall be accurate, shall not be misleading, and shall be without
material omission or arguments.” (Emphasis added). Id. at Section 43-3. In
contrast, a title need only “describe the proposed ordinance.” Id. at Section 42-
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2(e). While the features of the proposed ordinance cited by the council might be
required for a summary of the ordinance, their omission does not render its title
deficient under the Columbus City Charter.
{¶ 30} The council also argues that the title of the proposed ordinance
rendered the petition misleading. But absent evidence that the title had the potential
to mislead the initiative petition’s signers, the title’s failure to capture every detail
of the proposed ordinance is not a basis for invalidating the petition. See Christy,
77 Ohio St.3d at 38, 671 N.E.2d 1; Stutzman v. Madison Cty. Bd. of Elections, 93
Ohio St.3d 511, 515, 757 N.E.2d 297 (2001). Crucially, the council presents no
such evidence here.
{¶ 31} Instead, the council argues that the title “could have easily misled
signatories” because the title does not specify that the proposed ordinance would
result in a “marked departure from typical public expenditure and procurement
practices.” That argument, though, overlooks the fact that the full text of the
proposed ordinance was included with the part-petitions that were circulated for
signatures.
{¶ 32} “Generally, inclusion of the full text of an amendment or ordinance
on a petition satisfies all constitutional and statutory requirements * * * because the
full text * * * usually fairly and substantially presents the issue to petition signers.”
State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-5334, 776
N.E.2d 1050, ¶ 33. In this case, that means that relators provided signatories with
the specific information the council complains is missing from the title.
{¶ 33} Thus, while it is true that under the home-rule powers granted to
municipalities by the Ohio Constitution, municipalities have some authority to
enact their own procedures and requirements as to initiative petitions, Rubino, 155
Ohio St.3d 123, 2018-Ohio-3609, 119 N.E.3d 1238, at ¶ 15-16, in this case, the
council applied Section 42-2(e) of the Columbus City Charter unreasonably to
require the title to be so detailed as to be a summary of the proposed ordinance,
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even though the Charter does not require a summary. For these reasons, the
council’s decision finding the petition insufficient as to its form was an abuse of
discretion.
3. The Composition of the Committee’s Membership Did Not Create a Deficiency
in Relators’ Initiative Petition
{¶ 34} The council also argues that relators’ initiative petition is deficient
because, in their view, relator Gonzaga was not a qualified elector of the city of
Columbus, and Williams has passed away and “is no longer a petition committee
member.” These arguments are without merit.
{¶ 35} Charter Section 42-3 requires an initiative petition to “bear the
names of five qualified electors of the city of Columbus, who shall represent the
petitioners in all matters relating to such petitions and shall be known as the petition
committee.” Gonzaga and Williams are two of the committee members listed on
the initiative petition.
{¶ 36} Relying on a returned envelope submitted as evidence showing a
Houston, Texas forwarding address for Gonzaga, the council contends that
Gonzaga is no longer a qualified elector and that relators thus failed to abide by
Columbus City Charter Section 42-3. However, relator Gil-Llamas has testified by
affidavit that Gonzaga was a qualified elector of Columbus when the initiative
petition was circulated. The council’s evidence does not refute this testimony. All
that the returned envelope shows is that Gonzaga had a forwarding address in
Houston, Texas on November 25, 2020, after the initiative petition had been filed
with the city. The forwarding address does not necessarily mean that Gonzaga was
no longer a qualified elector of Columbus at that time, much less that she was no
longer a qualified elector during the time that the initiative petition was circulated
and filed. Therefore, this is not a valid reason to find relators’ petition insufficient.
{¶ 37} The council also argues that because Williams has passed away, the
petition committee lacks a sufficient number of members under the Columbus City
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Charter. The filing of the petition, the city attorney’s issuance of its memorandum
regarding the petition, the Franklin County Board of Elections’ certification of the
petition, and the city clerk’s reading of the signature-validation report all predated
Williams’s death. The council found the petition insufficient on the same day that
Williams passed away. The evidence thus demonstrates that Williams was a
qualified elector at all times pertinent to the petition process. Had the council not
abused its discretion, Williams’s death would not be an issue here.
{¶ 38} But regardless, the council’s arguments regarding the composition
of the committee are without merit. The council makes a sweeping argument that
Williams’s death caused the petition committee to have an insufficient number of
members and that the petition was therefore invalid, but it provides no legal support
for that argument. This court will not supply such support on its behalf. We
therefore reject the council’s assertion that Williams’s death is a valid reason to
find relators’ petition insufficient.
4. Relators Are Entitled to a Limited Writ of Mandamus
{¶ 39} For the reasons set forth above, the council abused its discretion in
finding relators’ petition insufficient. But for a writ to issue, relators must
demonstrate that they are entitled to the relief sought. Oberlin Citizens for
Responsible Dev., 106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, at ¶ 11.
“[T]he relator has the burden to show the existence of a legal right and a legal duty
that are clear.” State ex rel. Syx v. Stow City Council, 161 Ohio St.3d 201, 2020-
Ohio-4393, 161 N.E.3d 639, ¶ 27.
{¶ 40} Relators argue that the council was wrong to find their petition
insufficient, and they seek a writ of mandamus “ordering [the council] to submit
Relators’ proposed Columbus City Ordinance for a vote of the electors in the May
4, 2021 Primary Election.” But relators cannot demonstrate a clear legal right to
have the proposed ordinance submitted to the Columbus electors at the May 4
primary election.
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{¶ 41} If the council had found relators’ initiative petition sufficient,
Columbus City Charter Section 43-1 dictates what would have happened next:
Should the council find [an ordinance-initiative] petition sufficient,
it shall vote within thirty days to either adopt the proposed ordinance
without alteration, or by ordinance forthwith order and provide for
the submission of such proposed ordinance in its original form to a
vote of the electors of the city.
{¶ 42} Thus, the city council’s finding that a petition is sufficient does not
automatically mean that the proposed initiative goes on the ballot. Rather, a
sufficiency finding by the city council triggers a requirement that it take further
action—adopting the ordinance or submitting it to the electors—within 30 days.
{¶ 43} And even if the council had found relators’ petition sufficient and
decided to submit it to the electors, the proposed initiative would not necessarily go
on the May 4 primary-election ballot. If the council, by ordinance, chooses to
submit a proposed initiative to the electors, the Charter provides the following:
The aforesaid ordinance [submitting the proposed ordinance
to the electors] shall require that such proposed ordinance be
submitted at the next regular municipal election if one shall occur
not less than sixty nor more than one-hundred-twenty days after its
passage. If no such election will be held within the period herein
provided, the council shall, at its sole discretion, order and provide
for the submission of such proposed ordinance to a vote of the
electors of the city at either a special election within such period, or
at the next regular municipal election.
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(Emphasis added.) Columbus City Charter Section 43-2. Thus, even if the council
had found relators’ petition sufficient on November 25, 2020 (i.e., the date of the
ordinance finding relators’ petition insufficient), and voted within 30 days to
submit the proposed ordinance to the electors, there was no “regular municipal
election” that occurred within the 60-to-120-day parameter mandated in Charter
Section 43-2. See id. at Section 41(a) (defining “regular municipal elections” as
those occurring in November of odd-numbered years). Thus, under Charter Section
43-2, it was within the council’s “sole discretion” to either order a special election
or submit the initiative for a vote at the next regular municipal election, which will
occur on November 2, 2021. To the extent that relators seek a writ of mandamus
ordering the council to submit the proposed ordinance at a special election on the
May 4 primary-election ballot, they are not entitled to such relief, because the
calling of a special election is at the council’s sole discretion. A writ of mandamus
will not issue to control the discretion of a municipality’s legislative authority.
State ex rel. Obojski v. Perciak, 113 Ohio St.3d 486, 2007-Ohio-2453, 866 N.E.2d
1070, ¶ 20.
{¶ 44} But this court will not entirely foreclose relators’ request for relief.
In addition to the specific relief sought by relators, they have also requested “such
other relief that this Court deems just and proper.” Just and proper relief is a limited
writ of mandamus ordering the council to proceed with relators’ initiative petition
under the process set forth for initiated ordinances under Columbus City Charter
Section 43-1 et seq.
{¶ 45} This ruling is not unprecedented for this court. Indeed, this court has
granted a limited writ of mandamus under similar circumstances. See, e.g., State
ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., 159 Ohio St.3d 139, 2020-
Ohio-339, 149 N.E.3d 460, ¶ 26 (granting a “limited writ of mandamus” ordering
performance of “duties required by law for the potential placement of the proposal”
on the ballot). Because the council abused its discretion in finding relators’
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initiative petition insufficient, a limited writ of mandamus requiring the council to
go forward with the process set forth in Charter Section 43-1 et seq. is appropriate.
IV. CONCLUSION
{¶ 46} We hold that the council abused its discretion in finding relators’
initiative petition insufficient and grant relators a limited writ of mandamus
ordering the council to find the petition sufficient and to proceed with the process
for an initiated ordinance under Columbus City Charter Section 43-1 et seq. And
as noted above, we overrule relators’ objections to the council’s evidence and grant
the council’s motion to strike relators’ supplemental evidence. We sua sponte strike
relators’ amended evidence and deny relators’ motion to expedite as moot.
Limited writ granted.
O’CONNOR, C.J., and DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion.
BRUNNER, J., dissents.
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KENNEDY, J., dissenting.
{¶ 47} In this case, relators, Irene Gil-Llamas, Christina L. Gonzaga,
Tyrone Spence, Udell Hollins, and ProEnergy Ohio, L.L.C., seek a writ of
mandamus ordering respondents, Columbus City Council President Shannon G.
Hardin, President Pro Tempore Elizabeth Brown, and council members Rob
Dorans, Mitchell J. Brown, Shayla Favor, Emmanuel V. Remy, and Pricilla R.
Tyson (collectively, “the council”), “to submit Relators’ proposed Columbus City
Ordinance for a vote of the electors in the May 4, 2021 Primary Election.” This is
the only specific mandamus relief that relators seek. The majority determines that
relators cannot have that relief. That determination should end this case. Therefore,
I dissent from the majority’s judgment granting a limited writ.
{¶ 48} To be entitled to a writ of mandamus, relators must establish (1) a
clear legal right to the requested relief, (2) a clear legal duty on the part of
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respondents to provide it, and (3) the lack of an adequate remedy in the ordinary
course of the law. State ex rel. Oberlin Citizens for Responsible Dev. v. Talarico,
106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, ¶ 11. Relators must prove
those requirements by clear and convincing evidence. State ex rel. Scott v. Franklin
Cty. Bd. of Elections, 139 Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d 697, ¶ 14.
{¶ 49} Relators argue that the council was wrong to find their petition
insufficient, and they seek a writ of mandamus “ordering [the council] to submit
Relators’ proposed Columbus City Ordinance for a vote of the electors in the May
4, 2021 Primary Election.” But in this case, we need not reach the question whether
the council erred in finding the initiative petition insufficient. The majority agrees
that even if relators’ petition is sufficient under the Columbus City Charter, they
have not shown a clear legal right to have their petition submitted to the Columbus
electors at the May 4 primary election or a clear legal duty on the part of the council
to submit it at the election.
{¶ 50} But despite that determination, the majority grants relators
something that they do not seek: an order instructing the council to find relators’
initiative petition sufficient and to follow the Columbus City Charter’s process for
the consideration of an initiated ordinance. Even if the council had found relators’
initiative petition sufficient of its own volition, Columbus City Charter Section 43-
1 does not require the council to place the proposal on the May 4, 2021 ballot.
Nothing further can happen until the council either adopts the ordinance itself
without alteration or “by ordinance forthwith order[s] and provide[s] for the
submission of such proposed ordinance in its original form to a vote of the electors
of the city.” Id. Charter Section 43-2 then states:
The aforesaid ordinance [submitting the proposed ordinance
to the electors] shall require that such proposed ordinance be
submitted at the next regular municipal election if one shall occur
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not less than sixty nor more than one-hundred-twenty days after its
passage. If no such election will be held within the period herein
provided, the council shall, at its sole discretion, order and provide
for the submission of such proposed ordinance to a vote of the
electors of the city at either a special election within such period, or
at the next regular municipal election.
(Emphasis added.)
{¶ 51} Therefore, in granting the limited writ, the majority forces the
council to decide either to adopt the proposed ordinance itself or to determine at
which election it should be put before the people for a vote. If only relators had
thought to ask for that relief, it might be appropriate. But today, the majority
provides the mandamus request as well as the relief. That decision is counter to the
core elements of a mandamus claim: “[I]n a mandamus case, the relator has the
burden to show the existence of a legal right and a legal duty that are clear.”
(Emphasis sic.) State ex rel. Syx v. Stow City Council, 161 Ohio St.3d 201, 2020-
Ohio-4393, 161 N.E.3d 639, ¶ 27. It is not the province of this court to take on
relators’ burden in mandamus.
{¶ 52} The majority explains that this court has issued a limited writ before,
offering the example of State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn.,
159 Ohio St.3d 139, 2020-Ohio-339, 149 N.E.3d 460. In that case, citizens sought
a writ of mandamus ordering a school board to certify to the board of elections a
proposal to transfer territory from one school district to another and an order
compelling the elections board to place the proposal on the March 17, 2020 ballot,
id. at ¶ 1, 2, 6. In granting a limited writ, this court required the school board to
forward the proposal to the board of elections, but we did not order the board of
elections to put the proposal on the ballot, because the board of elections had
remaining statutory duties to review and examine the petition under R.C.
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3501.11(K)(1) and to perform any other duties required by law for the potential
placement of the proposal on the March 17, 2020 ballot. Id. at ¶ 26. This court
concluded, “If the board determines that the petition otherwise meets the
requirements established by law, then it shall place the proposal on the March 17
ballot notwithstanding the 90-day requirement set forth in R.C. 3311.242(B)(2).”
(Emphasis added.) Id.
{¶ 53} Therefore, the ultimate aim of the mandamus complaint in Dunn—
the placement of the transfer proposal on the March 17, 2020 ballot—was
enforceable in mandamus. And the relators in Dunn had specifically sought the
relief this court ordered against the school board. This court did not order the next
step of relief that the relators sought against the board of elections.
{¶ 54} Here, relators do not seek separate relief from different
governmental entities such that relief as to only one of those entities is appropriate.
And, unlike in Dunn, the ultimate aim of relators’ mandamus complaint in this case
is not achievable.
{¶ 55} Relators are required to seek appropriate relief in mandamus. In
State ex rel. Maxcy v. Saferin, 155 Ohio St.3d 496, 2018-Ohio-4035, 122 N.E.3d
1165, the relators sought a writ of mandamus ordering the board of elections to
place a proposed city-charter amendment on the ballot; the board of elections had
rejected the proposed amendment because it contained provisions that it said were
beyond the power of the city to enact by initiative. Id. at ¶ 1, 5. This court held
that the board of elections did not have the authority to determine whether a
proposed amendment to a municipal charter falls within the scope of authority to
enact via initiative. Id. at ¶ 13, 22. We held that a board of elections plays only a
ministerial role once a city council has passed an ordinance to place a proposed
charter amendment on the ballot. Id. at ¶ 19. Even though this court held that the
board of elections did not have the power to keep the proposed ordinance off the
ballot, we did not grant a writ of mandamus ordering the proposed charter
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January Term, 2021
amendment to be placed on the ballot, because the city council had failed to pass
an ordinance submitting the proposed ordinance to the electors. Id. at ¶ 19-24. We
determined, “The city council failed to fulfill that duty in the first instance, but
relators have not named it as a party in this mandamus action or sought a writ
compelling it to comply with that duty.” Id. at ¶ 22. The relators in Maxcy had
therefore failed to seek the correct relief, and despite the fact that they were correct
that the board of elections had acted outside its authority, we did not order the
proposed charter amendment to be placed on the ballot.
{¶ 56} Like the relators in Maxcy, relators here did not seek the correct
relief. So why would we engage in an act beyond the requested relief? Relators
have no legal right and the council has no legal duty to place the proposed ordinance
on the ballot for the May 4, 2021 election. It is unnecessary for this court to decide
more than that. Simply denying the writ is consistent with our duty not to issue
advisory opinions and is faithful to “ ‘the cardinal principle of judicial restraint—
if it is not necessary to decide more, it is necessary not to decide more,’ ” State ex
rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d
462, ¶ 51, quoting PDK Laboratories, Inc. v. United States Drug Enforcement
Administration, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part
and in judgment).
{¶ 57} Therefore, because I would deny relators’ request for a writ of
mandamus and would not issue a limited writ, I dissent.
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Fitrakis & Gadell-Newton, L.L.C., Robert J. Fitrakis, and Constance A.
Gadell-Newton, for relators.
Zach Klein, Columbus City Attorney, and Richard N. Coglianese and
Rebecca E. Wilson, Assistant City Attorneys, for respondents.
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