State ex rel. Sensible Norwood v. Hamilton 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. Sensible Norwood v. Hamilton Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-5919.]
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
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-5919THE STATE EX REL. SENSIBLE NORWOOD ET AL. v. HAMILTON COUNTY
BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of
Elections, Slip Opinion No. 2016-Ohio-5919.]
Mandamus—Writ of mandamus sought to compel board of elections to place
proposed city ordinance on the election ballot—Proposed ordinance
attempts to enact provisions that are beyond the scope of a municipality’s
authority to enact—Writ denied.
(No. 2016-1277—Submitted September 20, 2016—Decided September 22, 2016.)
IN MANDAMUS.
_________________
Per Curiam.
{¶ 1} This is an expedited election case in which relators seek a writ of
mandamus to require respondent, the Hamilton County Board of Elections, to place
a proposed “Sensible Marihuana Ordinance” on the ballot for the city of Norwood
at the November 8, 2016 general election. We deny the requested writ because
January Term, 2016
relators have failed to establish a clear legal right to requested relief and a clear
legal duty on the part of the board to provide the relief.
I. Factual and procedural history
{¶ 2} Relator Sensible Norwood is a political-action committee
established under R.C. Chapter 3517 to support an initiative proposing an ordinance
to decriminalize marijuana and hashish in the city of Norwood. Relator Amy
Wolfinbarger is the founder of Sensible Norwood and is one of the committee
members designated under R.C. 731.34 to represent the petitioners who filed the
initiative petition.
{¶ 3} On July 20, 2016, petitioners filed initiative petitions with signatures
to have a proposed ordinance placed on the November general-election ballot to
change the Norwood city ordinances regarding the legality of and penalties for
using and selling marijuana and hashish. Pursuant to R.C. 731.28, the petitions
were filed with the city auditor, who transmitted them to the Hamilton County
Board of Elections to determine the sufficiency of the signatures. After receiving
the board’s certification that the petitions contained sufficient signatures, the
auditor, on August 2, 2016, sent a letter to the board requesting that it place the
proposed ordinance on the ballot for the November 8, 2016 election.
{¶ 4} The board discussed placing the proposed ordinance on the ballot at
two meetings—on August 16, 2016, and on August 22, 2016. At the August 22,
2016 meeting, the board voted unanimously not to place the proposed ordinance on
the ballot, reasoning that it attempts (1) to enact felony offenses, which the board
members believed was beyond the authority of a city ordinance, and (2) to impose
administrative restrictions on the enforcement of existing laws.
{¶ 5} On August 29, 2016, relators initiated this action as an expedited
election matter pursuant to S.Ct.Prac.R. 12.08 seeking a writ of mandamus to
require the Hamilton County Board of Elections to place the proposed ordinance
on the ballot.
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II. Legal analysis
A. Review of petitions
{¶ 6} We have previously determined that county boards of elections have
the authority “to review, examine, and certify ‘the sufficiency and validity of
petitions.’ ” State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749,
43 N.E.3d 419, ¶ 11, quoting R.C. 3501.11(K). That authority can be exercised in
regard to municipal initiative petitions even after the board verifies the number of
signatures.
[I]f the auditor or clerk certifies the sufficiency and validity of the
initiative petition to the board of elections, the board must submit
the proposed ordinance or other measure at the next succeeding
general election occurring after seventy-five1 days from the
certification to the board of elections, but only if the board
determines under R.C. 3501.11(K) and 3501.39 that the petition is
sufficient and valid.
(Emphasis added.) State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 477,
764 N.E.2d 971 (2002).
{¶ 7} While municipal officials, like the Norwood city auditor, “have
limited discretionary authority concerning matters of form, but not matters of
substance * * * a board of elections has greater discretion to inquire into the
sufficiency of a proposed ballot measure than municipal officials do.” Walker at
¶ 10-11. A board may reject a petition if it “violates the requirements of [R.C.
1
R.C. 731.28 previously required a measure to be placed on a ballot at the next succeeding general
election occurring 75 days from the certification to the board of elections. In 2010, the number of
days was changed to 90. 2010 Am.Sub.H.B. No. 48.
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January Term, 2016
Chapter 3501], Chapter 3513. of the Revised Code, or any other requirements
established by law.” R.C. 3501.39(A)(3).
B. Does the proposed ordinance satisfy the requirements for an initiated
ordinance?
{¶ 8} The Hamilton County Board of Elections was authorized to review
the validity of the petition after the auditor asked the board to place the proposed
ordinance on the ballot. We therefore must consider whether the board properly
rejected the petition.
1. Proposed ordinance attempts to enact felony offenses and associated
penalties
{¶ 9} “ ‘Mandamus will not lie to compel a board of elections to submit
an ordinance proposed by initiative petition to the electorate if the ordinance does
not involve a subject which a municipality is authorized by law to control by
legislative action.’ ” State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d
437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 34, quoting State ex rel. Hazel v.
Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 168, 685 N.E.2d 224 (1997);
see Ohio Constitution, Article II, Section 1f.
{¶ 10} R.C. 715.67 specifies that a “municipal corporation may make the
violation of any of its ordinances a misdemeanor, and provide for the punishment
thereof by fine or imprisonment, or both.” However, “[t]he power to define and
classify and prescribe punishment for felonies committed within the state is lodged
in the General Assembly.” State v. O’Mara, 105 Ohio St. 94, 136 N.E. 885 (1922),
paragraph one of the syllabus, overruled in part on other grounds, Steele v. State,
121 Ohio St. 332, 168 N.E. 846 (1929).
{¶ 11} The proposed ordinance purports to enact felony offenses and
impose penalties for possessing or using marijuana and hashish. For example,
proposed section 513.15(b) establishes an offense for the possession of marijuana
and then in subsection (3) states, “If the amount of the drug involved equals or
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exceeds two hundred grams, possession of marihuana is a fifth degree felony drug
abuse offense. Persons convicted of violating this section shall not be fined and no
incarceration, probation, nor any other punitive or rehabilitative measure shall be
imposed.” (Emphasis added.) Similar language applies to the possession of
hashish.
{¶ 12} Although the proposed ordinance specifically prohibits any
punishment for the offense, the language also states that the offense is a felony. 2
While a city may define misdemeanor offenses and impose penalties by ordinance,
a city does not have authority to define felony offenses. Because the authority to
define and to propose penalties for felonies is limited to the General Assembly,
relators are not entitled to have a proposed ordinance that purports to enact a felony
offense placed on the ballot.
2. Proposed ordinance attempts to place administrative restrictions on
the enforcement of existing laws
{¶ 13} “Administrative actions are not subject to initiative.” N. Main St.
Coalition, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, at ¶ 34. “The
test for determining whether the action of a legislative body is legislative or
administrative is whether the action taken is one enacting a law, ordinance or
regulation, or executing or administering a law, ordinance or regulation already in
existence.” Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968),
paragraph two of the syllabus.
{¶ 14} In applying this test to the proposed ordinance, we conclude that
significant portions of the proposed ordinance attempt to govern the execution of
existing law rather than enact new law. The following provisions are distinctly
administrative:
2
For the purpose of state law, “any offense specifically classified as a felony is a felony.” R.C.
2901.02(D). An offense not otherwise classified is a felony “if imprisonment for more than one
year may be imposed as a penalty.” R.C. 2901.02(E).
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January Term, 2016
{¶ 15} (1) Section 513.15(m) prohibits a Norwood police officer or the
officer’s agent from reporting the possession, sale, use, or distribution of marijuana
or hashish to any authority other than the city attorney. The city attorney is
prohibited from referring a report of a violation to any other authority for
prosecution or for any other reason. The language is not restricted to instances
involving violations of the city’s ordinance.
{¶ 16} (2) Section 513.15(o) prohibits any authority from seeking criminal
or civil asset forfeiture based on violations of the proposed ordinance. However,
existing state and federal laws authorize criminal and civil asset forfeiture for
violations of controlled-substance laws. See, e.g., R.C. 2925.42.
{¶ 17} (3) Section 513.15(s) prohibits the suspension of a driver’s or
commercial driver’s license or permit for any length of time based on the drug-
abuse offenses in the proposed ordinance. Numerous sections of R.C. Chapter
2925, the drug-offenses laws, include provisions permitting or requiring a court to
suspend an offender’s driver’s license upon conviction. See, e.g., R.C. 2925.02(D),
2925.05(D), and 2925.04(D). See also R.C. 4510.05 and 4510.07 (providing for
the suspension of a driver’s or commercial driver’s license upon conviction of
violating municipal ordinances substantially similar to Revised Code provisions).
{¶ 18} Relators claim that these provisions are legislative rather than
administrative because the proposed ordinance would repeal and amend Norwood’s
current criminal law. Relators allege that the provisions are not administrative and
that those portions that direct how the proposed law should be enforced do not make
the provisions administrative. However, the language reaches far beyond the
enforcement of the proposed ordinance and attempts to prohibit the enforcement of
existing state and federal controlled-substance laws. These provisions are clearly
administrative.
{¶ 19} Relators argue that even if sections of the proposed ordinance are
administrative, it should be submitted to the ballot because it includes a severability
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clause. They contend that if a court later determines that certain provisions are
administrative, those provisions could be excised from the ordinance pursuant to
the severability clause. However, “we have made clear that [where a proposed
action is administrative], the board of elections is ‘required to withhold the initiative
and referendum from the ballot.’ ” State ex rel. Ebersole v. Delaware Cty. Bd. of
Elections, 140 Ohio St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 30, quoting State
ex rel. Oberlin Citizens for Responsible Dev. v. Talarico, 106 Ohio St.3d 481, 2005-
Ohio-5061, 836 N.E.2d 529, ¶ 17.
{¶ 20} Because a significant portion of the proposed ordinance is
administrative, the board of elections properly refused to place it on the ballot.
C. Are relators entitled to a writ of mandamus?
{¶ 21} To be eligible for a writ of mandamus, relators must “establish a
clear legal right to the requested relief, a clear legal duty on the part of the board
and its members 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.
{¶ 22} Relators have failed to establish a clear legal right to their requested
relief and a clear legal duty on the part of the board to provide it. As we have
previously acknowledged, “[e]lection officials serve as gatekeepers, to ensure that
only those measures that actually constitute initiatives or referenda are placed on
the ballot.” Walker, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419, at ¶ 13.
The Sensible Norwood proposed ordinance was properly rejected by the board of
elections because it attempts to enact provisions that are beyond the scope of a
municipality’s authority to enact.
Writ denied.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________________
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January Term, 2016
Kalniz, Iorio, & Reardon Co., L.P.A., and Edward J. Stechschulte, for
relators.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T.
Stevenson and Cooper D. Bowen, Assistant Prosecuting Attorneys, for respondent.
Keith D. Moore, Norwood Law Director, and Timothy A. Garry Jr.,
Assistant Law Director, urging denial of the writ for amicus curiae city of Norwood.
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