Citizens for Choice v. Summit County Council , 143 Ohio App. 3d 823 ( 2001 )

I concur with the decision of the majority to dismiss the Village as a party to this appeal on the basis that the Village had no legal interest in the outcome of this case. However, I must respectfully dissent from the balance of the majority's opinion.

The court of common pleas determined that "official action" occurred when the clerk of Council sought the assistance of the county auditor on April 22, 1998 to count the number of valid signatures. The commencement of the "official action" triggered the point at which withdrawals of signatures could no longer be entertained.

However, as the majority notes, R.C. 503.09 only directs the Council to enter an order if there are sufficient petition signatures to support the secession. The Council's sole duty is to enter an order to erect the new township. This is the only possible "official action" Council can take. Since Chadwell permits withdrawals submitted before Council's "official action," I believe that withdrawals were valid until Council took official action entering an order denying the petition on June 7, 1999.

The Supreme Court's decision in Chadwell held that, absent statutory provisions to the contrary, the common law rule applies permitting a petitioner the "right to withdraw his name from such petition at any time before official action has been taken thereon." Chadwell, 169 Ohio St. at paragraph one of the syllabus, citing State ex rel. Kahle v. Rupert (1918), 99 Ohio St. 17. The Supreme Court in Chadwell found that "affirmative administrative action by [the board] * * * which action is essential to the statutory process of granting or denying such petition, constitutes ``official action.'" Id. at 438. The "official action" precluded further withdrawals. Id. at paragraph two of the syllabus. Unlike the statute involved in Chadwell, R.C. 503.09 does not explicitly require any action by Council except to enter an order to erect the township or to deny the petition. Nor does the action of the clerk of Council in the instant case amount to "affirmative administrative action by [the Council]."

Although Council has no discretion in the matter if a petition is filed that is supported by a sufficient number of valid signatures, Council is still required to enter an order erecting the township or denying the petition. No action of Council is binding unless it is taken pursuant to an "affirmative vote of a majority of the members." R.C. 302.10. See, also, R.C. 302.12. When the clerk of Council contacted other county officials to obtain a count of valid petition signatures, the clerk's actions constituted "preliminary ministerial steps" in the process of erecting a new township or denying the petition. See Chadwell,169 Ohio St. at 437, quoting State ex rel. DeConcini v. Phoenix (1952), 74 Ariz. 46,243 P.2d 766. Only a vote of Council on the petition itself can be construed to be "official action" by Council.

I believe that until the Council ordered the erection of the new township or denied the petition, signatories had the right to withdraw their signatures. Council entered an order denying the petition on June 7, 1999. Until that date, signers were entitled to withdraw their names from the petition.

Therefore, I must dissent from the majority's opinion.