State ex rel. Syx v. Stow City Council (Slip Opinion) , 2020 Ohio 4393 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Syx v. Stow City Council, Slip Opinion No. 2020-Ohio-4393.]
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SLIP OPINION NO. 2020-OHIO-4393THE STATE EX REL. SYX, LAW DIR., ET AL. v. STOW CITY COUNCIL ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Syx v. Stow City Council, Slip Opinion No.
2020-Ohio-4393.]
Elections—Amendments to city charter—Mandamus—Relators’ claim that city
council was required to place proposed amendments to city charter on
ballot barred by doctrine of laches—Relators did not establish a clear legal
right to have proposed amendments placed on ballot or a clear legal duty
on part of city council to place amendments on ballot—Writs denied.
(No. 2020-1058—Submitted September 9, 2020—Decided September 11, 2020.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} The relators in this case are (1) Jaime M. Syx, Law Director of the
city of Stow, (2) the city of Stow on its own behalf and on behalf of its 2020 Charter
Review Commission (collectively, “the commission”), and (3) the seven individual
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members of the commission. The respondents are (1) the Stow City Council, (2)
the seven individual members of the city council, and (3) the Summit County Board
of Elections (“the board”).1
{¶ 2} Relators seek a writ of mandamus ordering the city-council
respondents (collectively, “the council”) to hold an “administrative vote” on nine
amendments to the Stow City Charter that were proposed by the commission and
to issue an ordinance certifying the amendments to the board for placement on the
November 3, 2020 general-election ballot. In the alternative, relators seek a writ
ordering the board to accept the proposed amendments directly from the
commission itself. We deny the writs.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 3} The Stow City Charter provides for the composition, every five years,
of a seven-member charter-review commission that “shall, in meetings open to the
public, review the municipal Charter, and, no later than August 1 of the same year,
recommend to Council such amendments, if any, to th[e] Charter as in its judgment
are conducive to the public interest.” Stow City Charter, Sections 20.01 and 20.02.
The charter further provides, “Upon approval by two-thirds of Council, Council
shall submit to the electors all such proposed amendments to this Charter in
accordance, in each instance, with the provisions of the Constitution of Ohio.” Id.at Section 20.03.
{¶ 4} On July 15, the commission submitted nine proposed charter
amendments to the council. Syx avers that she prepared a written memorandum for
the council advising it that (1) it has an administrative duty to pass an ordinance
conveying the proposed amendments to the board for placement on the ballot, (2)
1. The members of the commission are John Baranek, Deborah Matz, Charles Obendorf, Alan
Narvy, Wendy Supple, John Moyer, and Jennifer Snyder. The members of the Stow City Council
are Sindi Harrison, Jeremy McIntire, Dennis Altieri, Mario Fiocca, Steve Hailer, Cyle Feldman, and
Christina Shaw.
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it has the authority to review the proposed amendments only as to their form, i.e.,
to determine whether they fairly and accurately presented the question to be voted
on, and (3) it lacks the authority to alter the proposed amendments.
{¶ 5} Nine ordinances were submitted to the council, each presenting one
of the proposed charter amendments to the board for placement on the November
3 ballot. At its August 6 regular meeting, the council voted to amend the text of
each proposed charter amendment contained within the ordinances.
{¶ 6} The council then voted on the ordinances as modified. None of the
ordinances received the five votes (representing two-thirds of the seven-member
council) required to pass. Therefore, the council forwarded none of the proposed
charter amendments to the board.
{¶ 7} On August 28, relators filed the instant complaint seeking a writ of
mandamus ordering the council to do the following:
[H]old an administrative vote on all nine Commission Amendments,
in their original form, at the next regular Council meeting
immediately following this Court’s order to do so, and issue an
ordinance in accordance with the results of the vote, and certify the
same to the Respondent, Summit County Board of Elections for
their review for placement on the November 3, 2020 general
election ballot, forthwith.
In the alternative, relators seek a writ of mandamus ordering the board to accept the
proposed charter amendments directly from the city of Stow on behalf of the
commission for placement on the November 3 ballot, without the approval of the
council.
{¶ 8} Sua sponte, this court set a briefing schedule that was more
expeditious than the schedule set forth in S.Ct.Prac.R. 12.08, because the deadline
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for the Ohio Secretary of State to approve the form of ballots is September 14, 2020,
see Am.Sub.H.B. No. 166, Section 735.11, and the deadline for the preparation of
ballots under the Uniformed and Overseas Citizens Absentee Voting Act
(“UOCAVA”), 52 U.S.C. 20302, is September 18, see R.C. 3511.04. The case is
now fully briefed.
II. ANALYSIS
{¶ 9} We deny the writs on the basis of the doctrine of laches, as well as
relators’ failure to establish the existence of a clear legal right to the requested relief
and a clear legal duty on the part of respondents to provide it.
A. Laches
{¶ 10} “The elements of laches are (1) unreasonable delay or lapse of time
in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or
constructive, of the injury or wrong, and (4) prejudice to the other party.” State ex
rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656 N.E.2d
1277 (1995). “The question whether laches has barred a claim in mandamus rests
in the court’s sound discretion.” State ex rel. Carver v. Hull, 70 Ohio St.3d 570,
577, 639 N.E.2d 1175 (1994).
1. Knowledge of the Injury and Unreasonable Delay
{¶ 11} In elections cases, relators must act with the utmost diligence. State
ex rel. Citizens for Responsible Green Govt. v. Green, 155 Ohio St.3d 28, 2018-
Ohio-3489, 118 N.E.3d 236, ¶ 16 (lead opinion). The date upon which the council
failed to submit the commission’s proposed charter amendments was August 6.
The very next day, the commission voted to file this action. Yet, despite the fact
that Syx had already prepared a written memorandum for the council providing the
legal opinions that underlie relators’ arguments in this case, relators did not file
their complaint until three weeks later, on August 28. Under those circumstances,
the delay was unreasonable. See, e.g., State ex rel. Landis v. Morrow Cty. Bd. of
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Elections, 88 Ohio St.3d 187, 189, 724 N.E.2d 775 (2000) (applying laches to 22-
day delay).
2. Absence of an Excuse for the Delay
{¶ 12} In their merit brief, relators assert that the delay was due, at least in
part, to Syx’s desire to wait for an opinion that the council had sought from outside
counsel regarding alternative interpretations of the Stow City Charter. However,
as the council points out and relators acknowledge, the decision to retain outside
counsel had to be approved by the mayor of the city of Stow. The council asserts
that the mayor did not sign the outside-counsel agreement until August 31—after
this lawsuit had been filed. In their reply brief, relators concede that they “had no
idea when Council officially retained outside legal counsel.” We therefore reject
relators’ claim that their delay in filing this action was justified by Syx’s
expectation of an impending opinion from outside counsel.
{¶ 13} The only other excuses relators present for their delay in filing this
action are the high number of personal and professional obligations of the attorneys
in Syx’s office. However, that is not a valid excuse for delay in an expedited-
election case:
[T]he committee asserts that its delay was excusable because the
exhibits in the case are voluminous and its attorney had to juggle
this matter with other cases and priorities. This assertion ignores the
fact that a similar argument could likely be made in every election
case and, if successful, would swallow the doctrine of laches.
Citizens for Responsible Green Govt. at ¶ 22. We therefore determine that relators
have not presented a valid excuse for their delay.
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3. Prejudice
{¶ 14} “Prejudice is not inferred from a mere lapse of time.” Polo, 74 Ohio
St.3d at 145, 656 N.E.2d 1277. However, “when a relator’s unreasonable delay in
filing a mandamus case causes the matter to become an expedited election matter
when filed, that delay is presumed to constitute prejudice for laches purposes.”
Citizens for Responsible Green Govt., 155 Ohio St.3d 28, 2018-Ohio-3489, 118
N.E.3d 236, at ¶ 25. That is because expediting an election case “restricts
respondents’ time to prepare and defend against relators’ claims, or impairs boards
of elections’ ability to prepare, print, and distribute appropriate ballots because of
the expiration of the time for providing absentee ballots.” State ex rel. Willke v.
Taft, 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536, ¶ 18.
{¶ 15} This case would have been automatically expedited under
S.Ct.Prac.R. 12.08 even if relators had filed their complaint on the day the council
voted on the ordinances. But as the council notes, relators’ delay nevertheless
prejudiced it because the delay brought the case so close to the statutory deadlines
for finalizing ballots that this court was forced to further expedite the case. The
council argues that relators’ delay “caused prejudice to Respondents by making this
‘expedited elections case’ an emergency * * *.” (Emphasis sic.) We agree.
{¶ 16} Under S.Ct.Prac.R. 12.08, respondents would have had five days
after the service of the complaint to file their answers and three days after receiving
relators’ merit brief and evidence to file their own briefs and evidence. By contrast,
our sua sponte order of August 28 provided respondents with only one business day
to file their answers to the complaint and only one and one-half days after the filing
of relators’ merit brief and evidence to file their own briefs and evidence. This
schedule—which was necessitated by the September 14 deadline for the secretary
of state to approve the form of ballots and the September 18 deadline for the board
to prepare ballots under the UOCAVA—provided respondents with significantly
less time to prepare and defend against relators’ claims than they would have had
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under the already expedited schedule set forth in S.Ct.Prac.R. 12.08. Relators’
delay thereby prejudiced respondents. See Willke at ¶ 18.
{¶ 17} Relators also argue that the council can act on election matters only
at a regular council meeting, citing Section 4.09(f) of the Stow City Charter. The
council’s next regular meeting is September 24. If we were to issue a writ of
mandamus, the council would be faced with a choice to either vote on an election
matter at a special meeting—which relators aver would violate the charter—or to
submit the proposed charter amendments to the board after the statutory deadlines
for approving the form of the ballot and preparing UOCAVA ballots. That would
also constitute prejudice. See State ex rel. Vickers v. Summit Cty. Council, 97 Ohio
St.3d 204, 2002-Ohio-5583, 777 N.E.2d 830, ¶ 18 (“If relators had acted more
promptly, [the passage of the statutory deadline to have absentee ballots printed]
might have been avoided and any potential prejudice to the county in its statutory
obligation to absentee voters would have been minimized”); see also Willke, 107
Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536, at ¶ 18. The doctrine of laches
therefore bars relators’ claims.
B. Clear Legal Right and Clear Legal Duty
{¶ 18} To be entitled to a writ of mandamus, relators must establish “a clear
legal right to the requested relief, a clear legal duty on the part of respondents to
grant it, and the lack of an adequate remedy in the ordinary course of the law.”
State ex rel. Commt. for Charter Amendment Petition v. Maple Hts., 140 Ohio St.3d
334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 17. Relators have not established the
existence of a clear legal right to the requested relief or a clear legal duty on the
part of the council or the board to provide it.
1. The Council
{¶ 19} Relators argue that (1) the council has a duty to hold an
“administrative vote” on the commission’s proposed charter amendments in their
original, unmodified form, (2) an administrative vote means that the council may
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review the proposed amendments only as to their form, and (3) the council’s review
of the form involves only determining whether the proposed amendments’ text
fairly and accurately presents the question to be decided by the voters. Relators
also allude to a purported right of the commission to have its proposed amendments
reach the ballot. Relators argue that the plain language of the charter prohibits the
council from modifying the commission’s proposed charter amendments or
rejecting those with which it disagrees.
{¶ 20} Section 20.02 of the Stow City Charter provides that the commission
shall “recommend to Council such amendments, if any, to this Charter as in its
judgment are conducive to the public interest.” (Emphasis added.) Section 20.03
provides, “Upon approval by two-thirds of Council, Council shall submit to the
electors all such proposed amendments to this Charter in accordance, in each
instance, with the provisions of the Constitution of Ohio.” (Emphasis added.)
Neither the charter nor the Ohio Constitution imposes a clear legal duty on the
council to submit the commission’s proposed charter amendments to the electors
or grants the commission a clear legal right to determine what amendments the
council submits.
{¶ 21} The express language of the charter refers to the commission’s
proposed amendments as “recommendations” and requires their submission to the
electors only upon “approval” by two thirds of the council. The charter does not
state that the council’s approval is limited to the form of the amendments or that
the council must approve the recommendations without modification. Relators
argue that their interpretation of the charter must prevail or else Section 19.01 of
the charter, which allows the council to submit its own proposed charter
amendments to the electors upon the approval of two-thirds of the council, would
swallow Section 20.03. Relators further argue that the council has violated Section
4.18 of the charter, which prohibits the council from abolishing any commission
that the charter has created. But nothing in Section 19.01 or Section 4.18 is
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inconsistent with the commission serving as an advisor for the purpose of making
recommendations—as Section 20.02 expressly provides—that two-thirds of the
council may or may not approve under Section 20.03.
{¶ 22} With respect to the Ohio Constitution, “[t]he ‘manifest object’ of
Section 9 of Article XVIII ‘is to provide the procedure for the submission of a
charter amendment to electors,’ and these ‘requirements are clear and complete,
and are not to be added to or subtracted from.’ ” State ex rel. Commt. for the
Charter Amendment, City Trash Collection v. Westlake, 97 Ohio St.3d 100, 2002-
Ohio-5302, 776 N.E.2d 1041, ¶ 31, quoting Billington v. Cotner, 25 Ohio St.2d
140, 146, 267 N.E.2d 410 (1971). Article XVIII, Section 9 of the Ohio Constitution
provides only two procedures by which proposed charter amendments may reach
the ballot: “upon petitions signed by ten per centum of the electors of the
municipality,” and “by a two-thirds vote of the legislative authority.” Under
Section 4.01 of the charter, all legislative power in the city of Stow is vested in the
council. Therefore, as the council points out in its merit brief, Article XVIII,
Section 9 grants neither the mayor, the clerk, nor any other municipal officer or
body the authority to approve proposed charter amendments for submission to the
electors. Accordingly, the charter cannot grant the commission the authority to
determine what proposed amendments will reach the electors, subject only to
approval by the council as to their form, without impermissibly adding to the
prescribed procedures set forth in Article XVIII, Section 9.
{¶ 23} Relators’ arguments are primarily based not on the charter or the
Ohio Constitution but on three of this court’s decisions, all of which are inapposite:
State ex rel. Rosch v. Cuyahoga Cty. Bd. of Elections, 42 Ohio St.2d 364, 328
N.E.2d 793 (1975), State ex rel. Kittel v. Bigelow, 138 Ohio St. 497, 37 N.E.2d 41(1941), and State ex rel. Schuck v. Columbus, 152 Ohio St.3d 590, 2018-Ohio-1428,
99 N.E.3d 383.
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{¶ 24} In Rosch, we held that the Broadview Heights City Council had
properly submitted proposed charter amendments to the electors by way of an
ordinance passed without three readings, because the council’s duty was
administrative. Id. at 366. However, the Broadview Heights City Charter lacked
the “upon approval by two-thirds of Council” provision at issue here. Id. at 364,
fn.1. Moreover, the narrow issue in Rosch was whether the council had used a
proper procedure to pass the ordinance—not whether the council had been required
to pass the ordinance.
{¶ 25} In Kittel, we considered a city council’s determination of the
sufficiency and validity of petitions to submit a charter amendment to the electors.
Kittel at 503. Our opinion in Kittel does not speak to the standard under which a
council must review charter amendments proposed by a charter-review
commission. See id.
{¶ 26} Finally, in Schuck, we considered whether the city of Columbus had
complied with a provision in its charter that specifically required an accurate
summary of proposed charter amendments to be submitted to the electors. 152
Ohio St.3d 590, 2018-Ohio-1428, 99 N.E.3d 383, at ¶ 12. However, the Stow City
Charter contains no similar provision. These cases are inapplicable to the facts
presented here.
{¶ 27} At bottom, relators’ arguments appear to rely on a misallocation of
the burden of proof. Relators argue that when the Stow City Council in 2019
amended Section 20.03 of the Stow City Charter, it could have added language
clearly stating that the council had the discretion to reject or modify charter
amendments proposed by the commission with which it disagreed. Relators posit
that because the added language does not clearly provide such discretion, the
council cannot interpret Section 20.03 as granting it those powers. However, in a
mandamus case, the relator has the burden to show the existence of a legal right
and a legal duty that are clear. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097,
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18 N.E.3d 426, at ¶ 17. Section 20.03 requires the council to act if two-thirds of
council give their “approval” of the commission’s proposed charter amendments.
To the extent that Section 20.03 fails to clearly specify the parameters of the
required approval, it is relators’ mandamus claim—not the council’s interpretation
of the charter—that we must reject.
2. The Board
{¶ 28} Relators concede that “[t]he Board of Elections does not have a duty
to place the Commission Amendments on the ballot until Council fulfills its duty,
first.” Accordingly, we reject relators’ mandamus claims against the board as
unripe. See State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., 158 Ohio
St.3d 370, 2020-Ohio-40, 143 N.E.3d 488, ¶ 18 (claim against board of elections
not ripe when duty to place issue on ballot arose only after school board’s
certification of the issue, which had not yet occurred).
III. CONCLUSION
{¶ 29} Based on the foregoing, we deny the writs.
Writs denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
KENNEDY and DEWINE, JJ., concur in judgment only.
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Jaime M. Syx, Stow Law Director, and Callie J. Channell, Deputy Law
Director, for relators.
Roetzel & Andress, L.P.A., Stephen W. Funk, Justin Markey, and Emily K.
Anglewicz, for respondents Stow City Council, Sindi Harrison, Jeremy McIntire,
Dennis Altieri, Mario Fiocca, Steve Hailer, Cyle Feldman, and Christina Shaw.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Raymond
J. Hartsough and John Galonski, Assistant Prosecuting Attorneys, for respondent
Summit County Board of Elections.
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