State ex rel. Espen v. Wood Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Espen v. Wood Cty. Bd. of Elections, Slip Opinion No. 2017-Ohio-8223.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2017-OHIO-8223THE STATE EX REL. ESPEN v. WOOD COUNTY BOARD OF ELECTIONS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Espen v. Wood Cty. Bd. of Elections, Slip Opinion
No. 2017-Ohio-8223.]
Elections—Initiative—Mandamus and prohibition—County board of elections not
authorized to decide legality or constitutionality of proposed charter
amendment’s substantive terms—R.C. 3501.28(M)(1)(a) violates
separation-of-powers doctrine by attempting to confer judicial review
power on boards of elections—Board of elections did not abuse discretion,
engage in fraud or corruption, or ignore applicable law in validating
contested signatures on initiative petition—Writs denied.
(No. 2017-1313—Submitted October 11, 2017—Decided October 19, 2017.)
IN MANDAMUS and PROHIBITION.
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Per Curiam.
{¶ 1} In this expedited election case, relator, David W. Espen, seeks a writ
of mandamus and/or a writ of prohibition to compel respondent, the Wood County
Board of Elections, to remove a charter amendment petition from the November
2017 ballot. We deny the writs.
Background and procedural motions
{¶ 2} On August 7, 2017, the city of Bowling Green received a petition
proposing an amendment to the city charter adding a new Article I, Section 1.05,
titled “Community Rights to a Healthy Environment and Livable Climate.” On
September 6, the Wood County Board of Elections certified the proposed
amendment to the November 2017 ballot.
{¶ 3} Espen filed a letter of protest on September 11. The board held a
hearing, and on September 19, issued a written decision overruling the protest.
{¶ 4} Espen filed the present expedited election complaint the same day.
The board of elections filed an answer on September 25, 2017. On October 2, the
board filed a motion for leave to file an amended answer, after noticing that its
original answer had inadvertently admitted the factual averments in paragraph 21
of the complaint, which the board wished to deny. We grant that motion.
{¶ 5} The members of the Committee of Petitioners for the Bowling Green
Charter Amendment, Lisa Kochheiser, Jennifer Karches, Joseph R. DeMare, and
Bradley M. Holmes (“the committee”), filed an unopposed motion for leave to
intervene, a proposed answer, and an amicus brief in support of the board of
elections. We construe Civ.R. 24 liberally to permit intervention. State ex rel.
Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-4612,
955 N.E.2d 935, ¶ 41. Pursuant to Civ.R. 24(B)(2), we grant the motion to
intervene and accept the amicus brief as the committee’s brief on the merits.
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Legal analysis
{¶ 6} Espen raised two issues in his protest before the board of elections.
First, he challenged the validity of the petition, alleging that it exceeded the
municipal powers of self-government set forth in the Ohio Constitution. And
second, he alleged that the petition had insufficient valid signatures to qualify for
the ballot because five signatures the board accepted should have been invalidated.
After hearing testimony and reviewing documents, the board concluded that the
five contested signatures were valid and that Espen had “presented no testimonial
evidence to support his contention that the proposed Bowling Green Charter
Amendment exceeded the scope of municipal initiative power.”
{¶ 7} When reviewing a decision of a county board of elections, the
standard is whether the board engaged in fraud or corruption, abused its discretion,
or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin
v. Union Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d
759, ¶ 9.
1. The protest against the substance of the petition
{¶ 8} Ohio Constitution, Article XVIII, Section 3, provides that
municipalities “have authority to exercise all powers of local self-government and
to adopt and enforce within their limits such local police, sanitary and other similar
regulations, as are not in conflict with general laws.” This authority is also
extended to the people acting in their sovereign capacity: “The initiative and
referendum powers are hereby reserved to the people of each municipality on all
questions which such municipalities may now or hereafter be authorized by law to
control by legislative action * * *.” Ohio Constitution, Article II, Section 1f.
{¶ 9} A municipal ordinance created under the power of local self-
government “must relate ‘solely to the government and administration of the
internal affairs of the municipality.’ ” In re Complaint of Reynoldsburg v. Columbus
S. Power Co., 134 Ohio St.3d 29, 2012-Ohio-5270, 979 N.E.2d 1229, ¶ 25, quoting
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Beachwood v. Cuyahoga Cty. Bd. of Elections, 167 Ohio St. 369, 148 N.E.2d 921(1958), paragraph one of the syllabus. The limitations on municipal lawmaking in
Article XVIII, Section 3 apply with equal force to municipal charter provisions.
Ohio Constitution, Article XVIII, Section 7.
{¶ 10} Espen contended that the proposed charter amendment violates
Article XVIII, Section 3 in at least four ways. Proposed Article I, Section 1.05(a)
of the charter provides:
The people of the City of Bowling Green, and the natural
communities and ecosystems in Bowling Green, possess the right to
a healthy environment and livable climate. That right shall include
the right to be free from new infrastructure for fossil fuel
transportation within the City of Bowling Green or on property
owned by the City of Bowling Green, except for infrastructure to
transport fossil fuels to end-users within Wood County.
{¶ 11} Espen challenges this provision as a regulation of commerce that
occurs outside Bowling Green’s municipal boundaries and therefore beyond the
city’s authority to enact. Subpart (b) of the charter amendment provides: “City of
Bowling Green law enforcement, and cooperating agencies acting within the
jurisdiction of the City of Bowling Green, shall have no lawful authority to surveil,
detain, arrest, or otherwise impede persons enforcing these rights.”
{¶ 12} Espen further challenges this clause as a regulation of county, state,
and federal law-enforcement officials, which Bowling Green is without authority
to enact.1 And he opposes other sections of the charter amendment on the grounds
that they purport to regulate the jurisdiction of the courts.
1
Espen also alleges that subpart (b) of the amendment is defective because it is administrative in
nature. In State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio St.3d 176,
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{¶ 13} However, the question before the court is not whether the proposed
amendment would be constitutional if enacted, but whether the board of elections
has the authority to make that determination. And in answer to that question, we
have held:
The boards of elections * * * do not have authority to sit as
arbiters of the legality or constitutionality of a ballot measure’s
substantive terms. An unconstitutional amendment may be a proper
item for referendum or initiative. Such an amendment becomes void
and unenforceable only when declared unconstitutional by a court
of competent jurisdiction.
(Emphasis sic.) State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144
Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 11.
{¶ 14} Our jurisprudence limiting the authority of board of elections to
review the constitutionality of proposed measures rests squarely on separation-of-
powers considerations. Youngstown at ¶ 11 (holding that decisions of constitutional
interpretation belong to the courts, not the boards of elections). The separation of
powers is “implicitly embedded in the entire framework of those sections of the
Ohio Constitution that define the substance and scope of powers granted to the three
branches of state government.” S. Euclid v. Jemison, 28 Ohio St.3d 157, 159, 503
N.E.2d 136 (1986).
{¶ 15} Contrary to the argument advanced by the parties, the statutory
amendments made by 2016 Sub.H.B. No. 463 do not change this result. Newly
2016-Ohio-5919, 69 N.E.3d 696, we upheld the decision of a board of elections refusing to place a
measure on the ballot “[b]ecause a significant portion of the proposed ordinance [was]
administrative.” (Emphasis added.) Id. at ¶ 20. Unlike the ordinance at issue in Sensible Norwood,
the current proposal cannot fairly be characterized as administrative when considered in its totality.
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enacted R.C. 3501.38(M)(1) requires county boards of elections to examine
petitions to determine
(a) [w]hether the petition falls within the scope of a
municipal political subdivision’s authority to enact via initiative,
including, if applicable, the limitations placed by Sections 3 and 7
of Article XVIII of the Ohio Constitution on the authority of
municipal corporations to adopt local police, sanitary, and other
similar regulations as are not in conflict with general laws, and
whether the petition satisfies the statutory prerequisites to place the
issue on the ballot. The petition shall be invalid if any portion of the
petition is not within the initiative power * * *.
This attempt by the General Assembly to grant review power to the election boards
violates the Constitution because “ ‘the administration of justice by the judicial
branch of the government cannot be impeded by the other branches of the
government in the exercise of their respective powers.’ ” State v. Bodyke, 126 Ohio
St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 45, quoting State ex rel. Johnston
v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the syllabus.
To the extent that R.C. 3501.38(M)(1)(a) authorizes and requires boards of
elections to make substantive, preenactment legal evaluations, it violates the
separation-of-powers doctrine and is unconstitutional.2
{¶ 16} We agree with the board of elections that it had no authority to
invalidate the charter petition based on a substantive evaluation of its legality, and
we affirm the rejection of Espen’s first protest argument.
2
Other provisions enacted as part of 2016 Sub.H.B. No. 463, such as R.C. 3501.11(K)(2), are not
implicated in this case, because they relate exclusively to the adoption of county charter
amendments.
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2. The protest against the validity of the signatures
{¶ 17} Alternatively, Espen claimed that the petition failed to qualify for
the ballot because in certifying the amendment proposal, the board verified five
invalid signatures. To qualify for the ballot, the petition needed 714 valid
signatures. The board of elections verified 715 signatures. Thus, if successful,
Espen’s protest would have left the petition with too few signatures.
{¶ 18} The challenge was based on R.C. 3501.38(C), which requires each
signer of a part-petition to indicate the date of signing and the location of the
signer’s voting residence. “The voting address given on the petition shall be the
address appearing in the registration records at the board of elections.” R.C.
3501.38(C). A board of elections “may” disqualify a petition signature when the
residence listed by the signer is not the same as the residence on file with the board
for that signer. In re Protest Filed by Citizens for the Merit Selection of Judges,
Inc., 49 Ohio St.3d 102, 106, 551 N.E.2d 150 (1990).
{¶ 19} Espen identified five alleged mismatches:
 On their voter-registration forms, Kylor Kavahi, Cara Kalouris, and Sarah
Wilmore each listed 1417 East Wooster Street as their residential address.
But when they signed the petition, Kalouris and Wilmore wrote 1417
Bromfield, and Kavahi wrote 1417 Harshman Bromfield.
 Jacob Dyer registered at 522 Thurstin Street, but wrote “GT09-03 Kappa
Sigma” as his address on the part-petition.
 Olivia Diehl registered at 311 Mercer Road, Apt. D336, but listed
“Kreischer Darrow” on the petition as her address.
{¶ 20} However, the board of elections determined that in each case, the
address on the petition was effectively the same as on the registration form. Terry
Burton, deputy director of the board of elections, testified at the protest hearing that
the addresses were the same. With respect to Kavahi, Kalouris, and Wilmore,
Burton testified that 1417 is the street address, and Harshman Bromfield is the name
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of the dormitory. According to Burton, the board of elections treats both
designations as denoting the same address:
Well, in the example of [Kavahi], she registered under the
East Wooster Street address, and in our voter registration system,
that is automatically converted to the Bromfield address. Our
understanding is that those are equivalents in our system.
And so if they would have listed the Bromfield address in
the voter registration system, we would have entered it there with
the mailing address as being Wooster. If they register at the Wooster
Street address, we list it as Bromfield with Wooster as the mailing
address.
{¶ 21} The same is true of Dyer, who listed the name of his fraternity house
instead of its street address on the petition, and Diehl, who listed her dorm room
rather than its address.
{¶ 22} In treating the two designations as synonymous, the board of
elections was following the directions of the secretary of state, who has instructed
the boards of elections not to disqualify every apparent mismatch:
If an elector’s address given on the petition differs from that
on file with the board, then the board must invalidate that signature
unless the signer has provided the elector’s residence information in
a format that is consistent with postal regulations as opposed to the
political subdivision on file with the board of elections (e.g., writing
“Columbus” as the city when the elector’s political subdivision is
“Perry Township”). A board must not reject a signature solely based
on this difference.
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(Emphasis sic.) Ohio Secretary of State Directive 2017-15 (Aug. 8, 2017), see Ohio
Election Official Manual, Chapter 11, Section 1.05(C).3 The secretary’s directive
is consistent with the purpose of R.C. 3501.38, which is “to enable the board of
elections to determine whether a signer of the petition timely signed the petition
and is a registered voter.” Blackmore v. Nasal, 74 Ohio App.2d 382, 383-384, 599
N.E.2d 298 (2d Dist.1991).
{¶ 23} When the secretary of state, as the state’s chief election officer, has
adopted a reasonable construction of an elections statute, this court must defer to
that interpretation. State ex rel. Colvin v. Bruner, 120 Ohio St.3d 110, 2008-Ohio-
5041, 896 N.E.2d 979, ¶ 57. The board of elections has verified that the five
contested signatures came from registered electors. We see no reason to
disenfranchise those voters for using a different designation of their residential
addresses when that designation is the equivalent of the street address listed on their
registration forms.
{¶ 24} We affirm the board of elections’ decision rejecting Espen’s second
protest argument.
Conclusion
{¶ 25} Because we find that Espen’s protest had no merit, we deem it
unnecessary to address the committee’s procedural objections to the protest and this
lawsuit. We hereby deny the petitions for writs of mandamus and prohibition.
Writs denied.
O’CONNOR, C.J., and O’NEILL and FISCHER, JJ., concur.
O’DONNELL, J., concurs in judgment only.
FRENCH, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY and DEWINE, JJ.
3
https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-15_eom_ch_11.pdf.
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_________________
FRENCH, J., concurring in part and dissenting in part
{¶ 26} I concur in the majority’s decision to grant the motions for leave to
file an amended answer and for leave to intervene. With respect to the merits,
however, I respectfully dissent and would grant a writ of mandamus compelling the
Wood County Board of Elections (“board”) to remove the charter-amendment
petition from the November 2017 ballot based on the lack of sufficient signatures.
{¶ 27} Relator, David W. Espen, raised two issues in his unsuccessful
protest. First, he argued that the petition did not include a sufficient number of
valid signatures to qualify for the ballot. He specifically identified five signatures
that he claims the board was legally required to invalidate. Second, Espen argued
that the petition exceeded the municipal powers of self-government, as set forth in
the Ohio Constitution. I agree with Espen that the petition was procedurally
defective because it lacked a sufficient number of valid signatures to qualify for the
ballot.
{¶ 28} To qualify for the ballot, the petition required 714 valid signatures.
The board verified as valid 715 of the 1,230 signatures submitted. Espen
challenged five of the verified signatures as invalid under R.C. 3501.38(C). He
contends that the board had a legal duty to invalidate those signatures.
{¶ 29} When this court reviews a board of elections’ decision, the standard
is whether the board engaged in fraud or corruption, abused its discretion or acted
in clear disregard of applicable legal principles. State ex rel. Jacquemin v. Union
Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.
{¶ 30} R.C. 3501.38 prescribes rules governing petitions presented to a
board of elections and includes specific requirements applicable to petition signers.
For example, R.C. 3501.38(A) provides that only electors qualified to vote on the
subject of a petition may sign the petition. R.C. 3501.38(C) states:
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January Term, 2017
Each signer shall place on the petition after the signer’s name
* * * the location of the signer’s voting residence, including the
street and number if in a municipal corporation or the rural route
number, post office address, or township if outside a municipal
corporation. The voting address given on the petition shall be the
address appearing in the registration records at the board of
elections.
R.C. 3501.38(C) thus contains two requirements. First, if the residence is in a
municipal corporation, each signer must identify his or her voting residence by
street name and number. Second, the voting address listed on the petition must be
the same as the address that appears in the board’s voter-registration records.
{¶ 31} “[S]trict compliance is the default for election laws and * * * that
standard is lowered only when the statutory provision at issue expressly states that
it is.” State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8
N.E.3d 940, ¶ 40. “R.C. 3501.38(C) does not permit substantial compliance * * *.”
State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65
Ohio St.3d 167, 169, 602 N.E.2d 615 (1992). The board does not dispute that R.C.
3501.38(C) requires strict compliance.
{¶ 32} Espen’s protest stated that the signatures of Kylor C. Kavahi, Cara
C. Kalouris, Sarah C. Wilmore, Jacob L. Dyer, and Olivia K. Diehl are
accompanied by addresses that do not match the addresses appearing on their voter-
registration records. On their voter-registration forms, Kavahi, Kalouris, and
Wilmore each listed their address as 1417 East Wooster Street. But when they
signed the petition, which expressly asked for “VOTING RESIDENCE ADDRESS
STREET AND NUMBER,” Kavahi wrote “1417 Harshman Bromfield,” and
Kalouris and Wilmore wrote “1417 Bromfield.” Dyer’s voter-registration lists an
address of 522 Thurstin Street, but on the petition Dyer wrote “GT09-03 Kappa
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Sigma” as his address. Diehl’s voter registration lists an address of 311 North
Mercer Road, but on the petition she listed simply “Kreischer Darrow” as her
address. Facially, none of the addresses accompanying the challenged petition
signatures match the corresponding addresses in the board’s voter-registration
records.
{¶ 33} Despite its acknowledgment that strict compliance with R.C.
3501.38(C) is required, the board argues that this court has afforded boards of
election discretion to validate a signature despite noncompliance with that statute.
In re Protest Filed by Citizens for Merit Selection of Judges, Inc., 49 Ohio St.3d
102, 103, 551 N.E.2d 150 (1990), presented the question “whether a board of
elections may disqualify a signature on an initiative petition * * * where the
residence indicated by a signer is not the same as the residence on record with the
board of elections for said signer.” We answered that question in the affirmative.
Id. at 106.
{¶ 34} The board cites In re Protest for the proposition that it has discretion
to determine whether to invalidate a signature based on a discrepancy between the
address listed on the petition and the address listed on the signer’s voter registration.
But In re Protest did not address whether disqualification by the board was
mandatory or discretionary. There, the board of elections had rejected 9,100
signatures because of discrepancies between the addresses on the petition and the
addresses in the voter-registration records. With our holding, this court merely
approved the board’s action. We were not required to determine whether the board
would have had discretion to approve the challenged signatures, because it had
already disqualified them.
{¶ 35} In support of its validation of the challenged signatures, the board
relies on Ohio Secretary of State Directive 2017-15 (Aug. 8, 2017), see Ohio
Election Official Manual, Chapter 11, Section 1.05(C), found at
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https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-
15_eom_ch_11.pdf. It states:
If an elector’s address given on the petition differs from that
on file with the board, then the board must invalidate that signature
unless the signer has provided the elector’s residence information in
a format that is consistent with postal regulations as opposed to the
political subdivision on file with the board of elections (e.g., writing
“Columbus” as the city when the elector’s political subdivision is
“Perry Township”). A board must not reject a signature solely based
on this difference.
(Emphasis sic.) Id. at 11-13 to 11-14. Immediately prior to that language, however,
the same manual incorporates the first requirement of R.C. 3501.38(C), that “[t]he
petition must contain the elector’s voting residence address, including the house
number and street name or Rural Free Delivery (RFD) number, and the appropriate
city, village, or township.” (Emphasis added.) Id. at 11-13.
{¶ 36} The board contends that the challenged signatures fall within the
Election Official Manual’s postal-regulation exception because the street addresses
listed for the signers in the voter-registration records are the street addresses for the
residence halls and/or fraternity houses that the signers identified as their addresses
on the petition. Terry Burton, the deputy director of the board, testified at the
protest hearing, “Our understanding is that those are equivalents in our system.”
{¶ 37} The postal-regulation exception does not apply here. The exception
directs a board of elections to overlook the difference between an address on a
petition and the signer’s address on the voter register only if the address on the
petition “is consistent with postal regulations as opposed to the political subdivision
on file with the board of elections (e.g., writing ‘Columbus’ as the city when the
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elector’s political subdivision is ‘Perry Township.’ ” (Emphasis added.) Id. at 11-
13 to 11-14. The exception excuses only differences between the city, village or
township listed on the petition and the political subdivision listed on the voting-
registration records. It does not excuse a difference between the street number and
street name on the petition and the voter register, and it does not excuse a failure to
list any street number or street name. Because the postal-regulation exception is
inapplicable, the Election Official Manual required the board to invalidate the
challenged signature.
{¶ 38} Even if the board were able to determine that the information the
signers provided on the petition identifies the same residences as the addresses
listed in the board’s voting records, that equivalence does not cure the statutory
defect. Both R.C. 3501.38(C) and the Election Official Manual require that a
petition contain the elector’s voting-residence address, including the house number
and street name. None of the challenged signatures were accompanied by an
address that included both a street number and a valid street name. And nothing in
the Election Official Manual suggests that a board of elections may validate a
signature accompanied by a disparate address that does not comply with the statute
in that regard.
{¶ 39} In State ex rel. Citizens for Responsible Taxation, 65 Ohio St.3d at
169, 602 N.E.2d 615, the board of elections rejected the signatures of petition
signers who listed post-office boxes instead of voting-residence addresses even
though the board had information from which it could have otherwise confirmed
the signatures’ validity. Id. at 170. The board explained that the secretary of state
had instructed it not to count signatures that provided only a post-office box as an
address. Id. Citing R.C. 3501.11(P), which requires boards of elections to perform
the duties prescribed by law or by the rules of the secretary of state, we held that
the board had a duty to follow the secretary of state’s instruction, absent a showing
that the order had no statutory basis. Id. at 170-171. Here, the Election Official
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Manual published by the secretary of state required the board to invalidate the five
challenged signatures because the accompanying addresses on the petition differed
from those on file with the board, and the postal-regulation exception did not apply.
I therefore conclude that the board abused its discretion and acted in clear disregard
of applicable legal principles in validating the challenged signatures.
{¶ 40} Without the challenged signatures, the petition does not have the
requisite number of valid signatures to be submitted to the ballot. I would therefore
grant a writ of mandamus ordering the board to remove the proposed amendment
from the November 2017 general-election ballot.
KENNEDY and DEWINE, JJ., concur in the foregoing opinion.
_________________
McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo,
Derek S. Clinger, and Ben F.C. Wallace, for relator.
Paul A. Dobson, Wood County Prosecuting Attorney, and Linda F. Holmes
and David T. Harold, Assistant Prosecuting Attorneys, for respondent.
Terry J. Lodge, for intervening respondents.
Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, urging
issuance of the writs for amici curiae, Affiliated Construction Trades Ohio
Foundation, the Ohio Chamber of Commerce, and the American Petroleum
Institute.
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