State ex rel. Schuck v. Columbus (Slip Opinion) , 152 Ohio St. 3d 590 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Schuck v. Columbus, Slip Opinion No. 2018-Ohio-1428.]
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
the opinion is published.
SLIP OPINION NO. 2018-OHIO-1428
THE STATE EX REL. SCHUCK v. THE CITY OF COLUMBUS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Schuck v. Columbus, Slip Opinion No.
2018-Ohio-1428.]
Elections—Mandamus—Writ of mandamus sought to compel removal of proposed
city charter amendment from the ballot—Ballot summary conveys sufficient
information to inform voters what they are being asked to vote on—Writ
denied.
(No. 2018-0427—Submitted April 10, 2018—Decided April 13, 2018.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} In this expedited election case, relator, William Schuck, seeks a writ
of mandamus to compel respondents, the city of Columbus and the Franklin County
Board of Elections, to remove a proposal to amend the Columbus city charter from
the May 8, 2018 ballot. For the reasons set forth below, we deny Schuck’s motion
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for leave to amend his complaint to name Ohio Secretary of State Jon Husted as a
respondent and we deny the writ.
Background
Columbus Ordinance 0650-2018
{¶ 2} The Ohio Constitution authorizes municipalities to adopt charters for
local self-government. Ohio Constitution, Article XVIII, Sections 7 and 8. The
city of Columbus is a charter city, having adopted a comprehensive charter for its
government. See State ex rel. Davis Invest. Co. v. Columbus, 175 Ohio St. 337,
341, 194 N.E.2d 859 (1963).
{¶ 3} The Columbus city charter sets forth two procedures by which the
charter may be amended, only one of which is relevant here. Namely, the city
council may submit a proposed charter amendment to the electors of the city, in the
form of an ordinance approved by a two-thirds vote of the council. Columbus
Charter 45. The ordinance shall provide for submission of the proposed charter
amendment to the electors at the next regular municipal election or, if no regular
municipal election is scheduled to occur within a designated timeframe, at a special
election. Columbus Charter 45-2. In any ordinance placing a proposed charter
amendment on the ballot, the city council must “prescribe a brief summary of the
same, which shall be accurate, shall not be misleading, and shall be without material
omission or argument.” Columbus Charter 45-4.
{¶ 4} In its current form, the Columbus city charter provides: “The
legislative powers of the city, except as reserved to the people by this charter, shall
be vested in a council, consisting of seven members, elected at large.” (Emphasis
added.) Columbus Charter 3. An “election at large,” also known as an “at-large
election,” is defined as “[a]n election in which a public figure is selected from a
major election district rather than from a subdivision of the larger unit.” Black’s
Law Dictionary 631 (10th Ed.2014). Elsewhere, the charter spells out the operation
of this at-large voting system:
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The candidates for nomination to the office of city council
member who shall receive the greatest vote in [the] primary shall be
placed on the ballot at the next regular municipal election * * *, and
the candidates at the regular municipal election, equal in number to
the places to be filled, who shall receive the highest number of votes
at such regular municipal election, shall be declared elected.
Columbus Charter 41-5.
{¶ 5} On September 6, 2016, the Columbus City Council and Columbus
Mayor Andrew Ginther appointed a nine-member Charter Review Committee to
review the structure and governance of city council. In its final report, the
committee recommended that the council:
2. Adopt a “District At-Large” form of Council whereby, * * *
a. The city is apportioned into nine geographic Council
districts using best practices in apportionment and
reapportionment.
b. To run for Council, a candidate must live in and file
for a specific Council district seat.
c. Elections are shifted from at-large field races to at-
large by-place races, where candidates who live in
the same district run against each other for that seat.
d. Every Columbus voter maintains his/her right to cast
a vote for the candidate of their choice for every seat
on Council.
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{¶ 6} On March 5, 2018, the Columbus City Council approved Columbus
Ordinance 0650-2018, which proposed to amend the city charter in multiple
respects and which provided for the submission of the proposed charter amendment
to the voters for approval. The ordinance included making the following proposed
changes to the charter:
 Amending Columbus Charter 3 to read: “The legislative powers of the city,
except as reserved to the people by this charter, shall be vested in a council,
consisting of nine members, elected from districts by the electors of the
city”;
 Adding a clause to Columbus Charter 4, stating that “[e]ach member of
council shall be elected from one of nine districts by the electors of the city”;
 Adding an express requirement to Columbus Charter 6 that a member of
council shall have resided within the district the member represents for not
less than one year preceding the regular primary election for the office; and
 Amending Columbus Charter 41-5 by deleting much of the language and
amending the remainder to read:
Every elector of the city may vote for any municipal
office appearing on a primary, general, or special election
ballot. The two candidates for nomination to any municipal
office, including a councilmember elected by district, who
shall receive the greatest number of votes in a primary
election shall be placed on the ballot at a regular municipal
election, and the candidates at the regular municipal election
who shall receive the highest number of votes for their
respective offices at such regular municipal election, shall be
declared elected.
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Thus, the changes proposed in Columbus Ordinance 0650-2018, if approved by the
voters, would incorporate into the city charter the so-called “at-large by-place”
system recommended by the Charter Review Committee.
{¶ 7} To accompany Columbus Ordinance 0650-2018, city council
approved a “Proposed Charter Amendment Ballot Summary,” consisting of 15
bullet-point items. The first sentence of the summary states that the proposed
charter amendment “[t]ransitions city council from seven members elected at-large
to nine members elected from districts by the electors of the city.”
Schuck’s protest
{¶ 8} On March 9, 2018, Schuck filed a formal protest against the proposed
charter amendment. Schuck’s protest made two arguments. First, he argued that
the proposed charter amendment was substantively unconstitutional. Second, he
argued that the summary language—“nine members elected from districts by the
electors of the city”—was “false and deceptive” because the council members
would not be elected from districts—they would be required to reside in districts,
but they would be elected citywide, a distinction Schuck argued was not made clear
by the phrase “by the electors of the city.”
{¶ 9} On March 12, the office of Ohio Secretary of State Jon Husted
approved the final ballot language. And on March 15, the board of elections
informed Schuck that it would not hold a hearing on his protest. It declined to
consider his constitutional challenge to the proposed charter amendment for the
reason that the board lacked authority to make that determination. (This issue is
not before the court in this case.) As for his objection to the ballot language, the
board informed him that
[o]ur legal counsel believes that [this second objection] would
appear to be moot in light of the fact that the Board already has
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submitted the ballot language summary to the Secretary of State
[who] has responded with [his] approval. Moreover, the City of
Columbus’ charter reserves the right of City Council to summarize
the ballot language.
{¶ 10} Schuck filed suit against the city of Columbus and the Franklin
County Board of Elections on March 21 and filed an amended complaint on March
22. His amended complaint asks this court to issue a writ of mandamus to the city
and the board directing them to take all necessary steps to remove the proposed
charter amendment from the May 8 ballot. Pursuant to Sup.Ct.Prac.R. 12.08(A)(1),
the case was automatically expedited because it was filed within 90 days of the May
8 election.
Analysis
The merits of the mandamus complaint
{¶ 11} To be entitled to a writ of mandamus, a party must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) 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, 13. Given that the May 2018 election
is imminent, Schuck does not have an adequate remedy in the ordinary course of
the law. See State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St. 3d
584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 17 (holding that the relator had no
adequate remedy at law because the election was imminent at the time the county
board of elections denied the relator’s protest); accord State ex rel. Finkbeiner v.
Lucas Cty. Bd. of Elections, 122 Ohio St. 3d 462, 2009-Ohio-3657, 912 N.E.2d 573,
¶ 18.
{¶ 12} As noted, the Columbus city charter requires the council, when
placing a proposed charter amendment on the ballot, to adopt summary language.
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According to the charter, such ballot language “shall be accurate, shall not be
misleading, and shall be without material omission or argument.” Columbus
Charter 45-4. Schuck seeks a writ of mandamus compelling the removal of the
proposal from the ballot based on alleged deficiencies in the ballot language.
{¶ 13} The requirements of Columbus Charter 45-4 mirror other election-
law requirements. With respect to proposed statewide constitutional amendments,
ballot language is presumptively valid “unless it is such as to mislead, deceive, or
defraud the voters.” Ohio Constitution, Article XVI, Section 1. And when a local
issue qualifies for the ballot, a county board of elections may use either the entire
text of the proposal as ballot language, or it may prepare and certify a condensed
text so long as the text “properly describe[s]” the proposal. R.C. 3505.06(E). (If
the board chooses to use a condensed text, the full text of the proposal, along with
the percentage of votes necessary for passage, must be posted in each polling place
in an easily accessible location. Id.)
{¶ 14} The text of a ballot statement “ ‘ “must fairly and accurately present
the question or issue to be decided in order to assure a free, intelligent and informed
vote by the average citizen affected.” ’ ” State ex rel. Voters First v. Ohio Ballot
Bd., 133 Ohio St. 3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 29, quoting State ex
rel. Bailey v. Celebrezze, 67 Ohio St. 2d 516, 519, 426 N.E.2d 493 (1981), quoting
Markus v. Trumbull Cty. Bd. of Elections, 22 Ohio St. 2d 197, 259 N.E.2d 501
(1970), paragraph four of the syllabus. R.C. 3505.06 “serves to inform and protect
the voter and presupposes a condensed text which is fair, honest, clear and
complete, and from which no essential part of the proposed amendment is omitted.”
State ex rel. Minus v. Brown, 30 Ohio St. 2d 75, 81, 283 N.E.2d 131 (1972).
{¶ 15} We evaluate summary ballot language for proposed local issues
using the same standards used to evaluate ballot language for proposed statewide
constitutional amendments. State ex rel. Kilby v. Summit County Bd. of Elections,
133 Ohio St. 3d 184, 2012-Ohio-4310, 977 N.E.2d 590, ¶ 19. Those standards are
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that (1) voters have the right to know what they are being asked to vote upon, (2)
the use of language “ ‘in the nature of a persuasive argument in favor of or against
the issue’ is prohibited,” and (3) the determinative issue is whether the cumulative
effect of any technical defects in the ballot language is “ ‘harmless or fatal to the
validity of the ballot.’ ” Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St. 3d
137, 141, 519 N.E.2d 347 (1988), quoting Bailey at 519.
{¶ 16} In its third proposition of law, the city asks us to adopt a per se rule
that a ballot summary cannot be deficient when it uses exactly the same language
as the proposed charter amendment itself. As authority, the city cites State ex rel.
C.V. Perry & Co. v. Licking Cty. Bd. of Elections, 94 Ohio St. 3d 442, 764 N.E.2d
411 (2002), in which we refused to “penalize the township electors’ attempt to
exercise their right of referendum for summarizing the resolution with substantially
the same wording as the resolution itself,” id. at 445. But that statement was made
in response to a challenge that the summary did not sufficiently explain the terms
used therein (“AG” and “PUD” in a zoning referendum to refer to “agricultural”
and “planned unit development”). In C.V. Perry, there was no harm in using the
same abbreviations in the summary as those that appeared in the resolution itself.
But quoting selected language from a portion of a proposed charter amendment
verbatim cannot be a complete defense when the allegation is one of material
omission.
{¶ 17} From Schuck’s perspective, the critical changes to the charter, the
ones that flesh out the new voting system, do not appear in proposed Columbus
Charter 3. For example, the summary does not explain that voters will cast ballots
in all council races, including those for representatives in districts where they (the
voters) do not reside, a legislative change that appears in the proposed amendment
of Columbus Charter 41-5. Also, one of the bullet points in the summary explains
that if a vacancy on the council is filled by appointment, the person receiving the
appointment must reside in the district, but the summary does not say that
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Columbus Charter 6 would be amended to impose a residency requirement upon
elected council members.
{¶ 18} The city does not dispute that these would be material omissions if
this information were in fact omitted. But the city contends that all the required
information is contained in the single phrase employed in proposed Columbus
Charter 3: “elected from districts by the electors of the city” necessarily means that
the candidates for council must come from particular districts and that all the voters
of the city would vote for each candidate, irrespective of a voter’s residency district.
{¶ 19} The critical question, then, is whether city council satisfied the first
prong of the Jurcisin three-part test: does the language of proposed Columbus
Charter 3, imported wholesale into the summary, convey enough information for
voters to know what they are being asked to vote on? We answer that question in
the affirmative. The phrase “elected from districts by the electors of the city”
conveys the important information: the council members will come from districts,
but they will be elected “by the electors of the city.” (Emphasis added.) The final
clause is unambiguous and would not lead a reasonable reader to believe that
council members will be elected exclusively by the voters in their residency
districts.
{¶ 20} We hold that Schuck is not entitled to a writ of mandamus ordering
the removal of the proposal from the May 8 ballot.
{¶ 21} In the alternative, Schuck complains in his second proposition of law
that the board of elections failed to conduct an independent assessment of the city’s
proposed ballot language. But even assuming this to be true, the prayer for relief
in Schuck’s amended complaint did not request a remand to the board. Moreover,
compelling the board of elections to evaluate the ballot language at this time would
be an empty gesture given the sufficiency of the ballot language.
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The motion for leave to amend the complaint
{¶ 22} In its answer, the city pleaded, as an affirmative defense, that Schuck
“has failed to name all necessary parties to this action including Secretary of State
Jon Husted.” In response, Schuck filed a motion for leave to amend his amended
complaint, if necessary, to add Husted as a respondent and also to add the Delaware
and Fairfield County Boards of Elections. Respondents have not opposed the
motion.
{¶ 23} At the outset, we deny the portion of Schuck’s motion that asks for
leave to amend in order to add the Delaware and Fairfield County Boards of
Elections as respondents. Schuck states in his motion that he made this request in
anticipation of an argument by the city of Columbus that those boards are necessary
parties because portions of Columbus are located in those counties. However, the
city has not advanced this argument.
{¶ 24} The city does, however, contend that Secretary of State Husted is a
necessary party, based on R.C. 3501.11(V), which requires county boards of
elections, after approving ballot language for local questions and issues, to
“transmit the language to the secretary of state for the secretary of state’s final
approval.” Schuck disputes whether the secretary of state exercises any substantive
oversight over the city’s proposed ballot language.
{¶ 25} Given our disposition of Schuck’s mandamus complaint on the
merits, we deem it unnecessary to resolve this question. See State ex rel. Beard v.
Hardin, __ Ohio St.3d __, 2018-Ohio-1286, __ N.E.3d __, ¶ 35 (holding that it was
unnecessary to decide whether the relator failed to name all necessary respondents
because the relator was not entitled to mandamus relief on the merits). We therefore
deny the motion for leave to amend as moot.
{¶ 26} Based on the foregoing, we deny the request for a writ of mandamus.
Writ denied.
O’CONNOR, C.J., and O’DONNELL, FRENCH, and FISCHER, JJ., concur.
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KENNEDY, DEWINE, and DEGENARO, JJ., concur in judgment only.
_________________
William Schuck, pro se.
Zach Klein, Columbus City Attorney, and Richard N. Coglianese, Joshua
T. Cox, and Charles P. Campisano, Assistant City Attorneys, for respondent city of
Columbus.
Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Timothy A.
Lecklider, Assistant Prosecuting Attorney, for respondent Franklin County Board
of Elections.
_________________
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