State Ex Rel. Davis v. Beaver Township Board of Trustees , 133 Ohio St. 3d 170 ( 2012 )

[Cite as State ex rel. Davis v. Beaver Twp. Bd. of Trustees, 133 Ohio St. 3d 170, 2012-Ohio-
4177.]
THE STATE EX REL. DAVIS ET AL. v. BEAVER TOWNSHIP BOARD OF TRUSTEES.
[Cite as State ex rel. Davis v. Beaver Twp. Bd. of Trustees,
133 Ohio St. 3d 170, 2012-Ohio-4177.]
Mandamus—R.C. 504.01—Petition sought to compel a township board of trustees
to adopt a resolution to have the county board of elections submit the
question of limited home-rule government to the township electors—
Defective petition—Writ denied.
(No. 2012-1295—Submitted September 11, 2012—Decided September 14, 2012.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} This is an action for a writ of mandamus to compel respondent, the
Beaver Township Board of Trustees, to adopt a resolution to cause the Mahoning
County Board of Elections to submit to the Beaver Township electors the question
of whether the township should adopt a limited home-rule government. Because
relators did not strictly comply with the applicable statutory procedure, we deny
the writ.
Facts
{¶ 2} Beaver Township of Mahoning County, Ohio, has over 6,000
residents. Relators, Julia Furhman Davis and Patricia Gorcheff, are Beaver
Township residents and qualified state electors. Relators and other electors
circulated a petition on a form prescribed by the secretary of state entitled
“Initiative Petition (Municipality or Home Rule Township),” which refers to R.C.
504.14, 731.28 through 731.41, 3501.38, and 3503.06. The initiative petition is
addressed to the Beaver Township Fiscal Officer and requests the township
electors to vote on a proposed ordinance that, if approved at the November 6,
SUPREME COURT OF OHIO
2012 general election, would establish Beaver Township as a limited home-rule
government:
We, the undersigned, electors of the township of Beaver
Township, Ohio respectfully propose to the electors of such city,
village or township for their approval or rejection at the general
election to be held on the 6[th] day of November, 2012 the
following Ordinance:
***
INITIATIVE PETITION TO ESTABLISH BEAVER
TOWNSHIP AS A HOME RULE TOWNSHIP.
Shall the township of Beaver adopt a limited home rule
government, under which government the Board of Township
Trustees, by resolution, may exercise limited powers of local self-
government and limited police powers[?]
{¶ 3} A board of elections employee informed Davis that relators and the
other petitioners needed to collect at least 296 signatures of township electors,
which equaled 10 percent of the township voters who voted in the last
gubernatorial election. On July 23, 2012, relators and other petition circulators
submitted the petition, which contained 369 signatures, to the township fiscal
officer.
{¶ 4} On July 27, the Beaver Township Board of Trustees held a special
meeting to address the petition. After reviewing the petition, the board accepted
the recommendation of the prosecuting attorney’s office and adopted a resolution
rejecting the petition.
{¶ 5} Four days later, on July 31, relators filed this action for a writ of
mandamus to direct the board of township trustees to adopt a resolution to cause
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January Term, 2012
the county board of elections to submit to the Beaver Township electors the
question of whether the township should adopt a limited home-rule government.
After the board of township trustees submitted an answer, the court granted an
expedited alternative writ and issued an accelerated schedule for the submission
of briefs and evidence. 132 Ohio St. 3d 1496, 2012-Ohio-3738, 973 N.E.2d 265.
The parties have now submitted their briefs and evidence pursuant to the court’s
accelerated schedule.
{¶ 6} This cause is now before the court for our consideration of the
merits.
Analysis
Mandamus
{¶ 7} Relators request a writ of mandamus to compel the Beaver
Township Board of Trustees to adopt a resolution to have the Mahoning County
Board of Elections submit to the township electors the question of whether the
township should adopt a limited home-rule government. To be entitled to the
requested extraordinary relief, relators must establish a clear legal right to the
requested relief, a clear legal duty on the part of the board of township trustees to
provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St. 3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6. Relators must prove that they are entitled to the writ by clear and convincing
evidence. Id. at ¶ 13. Because of the proximity of the November 6, 2012 general
election, which is the election specified in their initiative petition, relators have
established that they lack an adequate remedy in the ordinary course of the law.
Id. at ¶ 6.
Clear Legal Right and Clear Legal Duty:
R.C. 504.01(A)(4)
{¶ 8} For the remaining requirements, relators claim that they have
satisfied the applicable requirements under R.C. 504.01(A)(4), which provides:
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If a township meets the population requirements of division
(A)(2) [a population of at least 5,000 but less than 15,000 in the
unincorporated territory of the township] or (3) [a population of
15,000 or more in the unincorporated territory of the township] of
this section, the electors of the unincorporated area of the township
may petition the board of township trustees to adopt a resolution
causing the board of elections to submit to the electors the question
of whether the township should adopt a limited home rule
government. Upon receipt of a petition signed by ten per cent of
the electors of the unincorporated area of the township, as
determined by the total number of votes cast in that area for the
office of governor at the most recent general election for that
office, the board of township trustees shall adopt the resolution.
The question shall be voted upon at the next general election
occurring at least ninety days after the certification of the
resolution to the board of elections.
(Emphasis added.)
{¶ 9} Although relators cite R.C. 504.01(A)(4) in support of their
mandamus claim, the petition they submitted to the township fiscal officer did not
request the board of township trustees “to adopt a resolution causing the board of
elections to submit to the electors the question of whether the township should
adopt a limited home rule government” as required by that statute.
{¶ 10} Instead, relators used a form prescribed by the secretary of state
that allows electors who reside in the unincorporated areas of townships that
already have limited home rule to propose by initiative petition a resolution to be
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January Term, 2012
submitted to township electors. That is, relators used a form prescribed for
initiative and referendum petitions filed pursuant to R.C. 504.14, which provides:
In a township that adopts a limited home rule government,
resolutions may be proposed by initiative petition by the electors in
the unincorporated area of the township and adopted by election by
these electors, and resolutions adopted by the board of township
trustees may be submitted to these electors for their approval or
rejection by referendum, under the same circumstances and in the
same manner as provided in sections 731.28 to 731.40 of the
Revised Code for municipal corporations, except that both of the
following apply:
(A) Initiative and referendum petitions shall be filed with
the township fiscal officer, who shall perform the duties imposed
under those sections upon the city auditor or village clerk.
(B) Initiative and referendum petitions shall contain the
signatures of not less than ten per cent of the total number of
electors in the unincorporated area of the township who voted for
the office of governor at the most recent general election for that
office in that area of the township.
{¶ 11} Under R.C. 504.01(A), the duty of the board of township trustees
to adopt the electors’ petition is conditioned on the receipt of a petition “to adopt
a resolution causing the board of elections to submit to the electors the question of
whether the township should adopt a limited home rule government.” Relators
instead submitted an initiative petition to submit a proposed resolution to the
electors pursuant to R.C. 504.14 in townships that have already adopted a limited
home-rule government.
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{¶ 12} Under these circumstances, the Beaver Township Board of
Trustees did not have a legal duty under either R.C. 504.01(A)(4) or 504.14 to
adopt a resolution allowing the question of whether the township should adopt a
limited home-rule government to be submitted to the electors. “ ‘[T]he settled
rule is that election laws are mandatory and require strict compliance and that
substantial compliance is acceptable only when an election provision expressly
states it is.’ ” State ex rel. Edwards Land Co., Ltd. v. Delaware Cty. Bd. of
Elections, 129 Ohio St. 3d 580, 2011-Ohio-4397, 954 N.E.2d 1193, ¶ 41, quoting
State ex rel. Ditmars v. McSweeney, 94 Ohio St. 3d 472, 476, 764 N.E.2d 971
(2002) (plurality opinion).
{¶ 13} Because R.C. 504.01(A)(4) and 504.14 do not state that substantial
compliance is acceptable, their requirements must be strictly followed. Relators
did not submit the proper petition to the board of township trustees as required by
R.C. 504.01(A)(4). Instead, they submitted a petition purporting to be under R.C.
504.14 to the township fiscal officer. R.C. 504.14 does not apply because Beaver
Township has not adopted limited home-rule government. See State ex rel.
Quirke v. Patriarca, 100 Ohio App. 3d 367, 370, 654 N.E.2d 136 (1995). And
although the court liberally construes the rights of initiative and referendum, see
S.I. Dev. & Constr., L.L.C. v. Medina Cty. Bd. of Elections, 100 Ohio St. 3d 272,
2003-Ohio-5791, 798 N.E.2d 587, ¶ 22, we will not do so when the applicable
statutory requirements are—as here—not satisfied, see State ex rel. Gemienhardt
v. Delaware Cty. Bd. of Elections, 109 Ohio St. 3d 212, 2006-Ohio-1666, 846
N.E.2d 1223, ¶ 57.
{¶ 14} Finally, insofar as relators’ claim suggests that their error came
from the use of forms that might have been supplied by election officials to them,
the board of township trustees is not estopped from asserting the defects in the
petition presented to the township fiscal officer. See State ex rel. Steele v.
Morrissey, 103 Ohio St. 3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 37
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January Term, 2012
(relators’ reliance on forms prescribed by the secretary of state and advice given
by the board of elections in completing and filing an initiative petition did not
estop election officials from asserting defects in the petition).
{¶ 15} Therefore, relators do not have a clear legal right to the requested
extraordinary relief, nor is there a corresponding clear legal duty on the part of the
board of township trustees to provide it.
Conclusion
{¶ 16} Based on the foregoing, relators have not established by the
requisite clear and convincing evidence that they are entitled to a writ of
mandamus to compel the Beaver Township Board of Trustees to adopt a
resolution pursuant to R.C. 504.01(A)(4) causing the Mahoning County Board of
Elections to submit to the electors the question of whether the township should
adopt a limited home-rule government. We consequently deny the writ.
Writ denied.
O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., dissents.
__________________
Law Office of Warner Mendenhall, Inc., and Warner D. Mendenhall, for
relators.
Paul J. Gains, Mahoning County Prosecuting Attorney, and Gina
DeGenova Bricker, Assistant Prosecuting Attorney, for respondent.
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