State ex rel. Jones v. Husted (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Jones v. Husted, Slip Opinion No. 2016-Ohio-5752.]
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. 2016-OHIO-5752
THE STATE EX REL. JONES ET AL. v. HUSTED.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Jones v. Husted, Slip Opinion No.
2016-Ohio-5752.]
Elections—Mandamus—Initiative-proposal petition—Restoration of previously
invalidated part-petition signatures and other relief sought—Writ granted
in part and denied in part.
(No. 2016-1235—Submitted September 1, 2016—Decided September 9, 2016.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} This mandamus action is the refiled companion case to Ohio Mfrs.
Assn. v. Ohioans for Drug Price Relief Act, ___ Ohio St.3d ___, 2016-Ohio-5377,
___ N.E.3d ___ (“Ohio Mfrs. Assn.”). Relators, Tracy L. Jones, William S. Booth,
Daniel L. Darland, and Latonya D. Thurman (hereafter, “the committee”), seek a
writ of mandamus to compel Ohio Secretary of State Jon Husted to count more than
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21,000 previously invalidated signatures in support of the “Ohio Drug Price Relief
Act.”
{¶ 2} For the reasons explained below, we grant the writ in part.
Background
{¶ 3} On December 22, 2015, the committee submitted approximately
10,029 part-petitions, containing 171,205 signatures, to Husted’s office. Husted
ordered the boards of elections to verify the petition signatures by 12:00 p.m. on
December 30, 2015.
{¶ 4} Husted received certification forms from all 88 counties by the
deadline. The county boards certified 119,031 valid signatures, 27,354 more than
required, and sufficient totals from 48 counties, four more than required. However,
Husted did not transmit the petitions to the General Assembly.
{¶ 5} Instead, on January 4, 2016, he issued Directive 2016-01, returning
the part-petitions to the county boards with instructions to re-review two aspects of
them and recertify the results. In response, on January 6, 2016, the committee filed
a complaint for a writ of mandamus against Husted, challenging his authority to
resubmit the part-petitions to the county boards for a second signature review. State
ex rel. Jones v. Husted, case No. 2016-0020 (“Jones I”).
{¶ 6} As a result of the re-review, seven county boards of elections
invalidated part-petitions on the grounds that they contained signature deletions.
Specifically, the committee alleges:
• The Adams County Board of Elections invalidated 17 part-petitions
containing 278 signatures previously certified by the board of elections as
valid.
• The Darke County Board of Elections invalidated three part-petitions
containing 16 signatures previously certified by the board of elections as
valid.
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• The Hocking County Board of Elections invalidated three part-petitions
containing 23 signatures previously certified by the board of elections as
valid.
• The Madison County Board of Elections invalidated nine part-petitions
containing 68 signatures previously certified by the board of elections as
valid.
• The Miami County Board of Elections invalidated 67 part-petitions
containing 781 signatures previously certified by the board of elections as
valid.
• The Putnam County Board of Elections invalidated two part-petitions
containing 18 signatures previously certified by the board of elections as
valid.
• The Union County Board of Elections invalidated three part-petitions
containing 56 signatures previously certified by the board of elections as
valid.
{¶ 7} The Cuyahoga County Board of Elections initially certified 1,779
valid part-petitions, containing 26,113 valid signatures. In the second review, the
board invalidated 18 part-petitions, reducing the total number of valid signatures to
25,855. However, Husted sua sponte invalidated 1,370 part-petitions containing
20,102 signatures from Cuyahoga County. He took this action based solely on
evidence that unauthorized parties had stricken signatures from these part-petitions.
His final certification included only 5,753 signatures from Cuyahoga County.
{¶ 8} The Delaware County Board of Elections initially certified 85 valid
part-petitions, containing 324 valid signatures. But during its re-review, the board
tied two to two on whether to invalidate part-petitions containing crossed-out
signatures. Husted has never issued a decision breaking the tie. Instead, his final
certification included zero signatures from Delaware County.
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{¶ 9} Despite the invalidation of these signatures on re-review, Husted
determined that the petition contained sufficient valid signatures, and so on
February 4, 2016, he transmitted the proposed law to the General Assembly.
Having achieved the desired result, the committee filed an application to dismiss
Jones I as moot and we granted that motion. 144 Ohio St. 3d 1472, 2016-Ohio-457,
45 N.E.3d 240.
{¶ 10} On February 29, 2016, the Ohio Manufacturers’ Association and
four other parties (collectively, “OMA”) filed a signature protest under Article II,
Section 1g of the Ohio Constitution. Ohio Mfrs. Assn., ___ Ohio St.3d ___, 2016-
Ohio-5377, ___ N.E.3d __, at ¶ 1. The complaint in Ohio Mfrs. Assn. alleged that
the secretary certified thousands of invalid petition signatures and that the actual
number of valid signatures was below the constitutional threshold for transmitting
the initiative to the legislature. Id. at ¶ 8.
{¶ 11} On March 25, 2016, while Ohio Mfrs. Assn. was pending, the
committee filed a mandamus complaint against Husted and ten county boards of
elections. State ex rel. Jones v. Husted, case No. 2016-0455 (“Jones II”). The
Jones II complaint challenged Husted’s authority to order a re-review of the
signatures and sought a writ restoring the signatures invalidated during the second
review. In addition, the complaint sought an order reversing Husted’s decision to
invalidate the Cuyahoga County part-petitions and compelling him to break the
Delaware County tie in favor of the 324 signatures previously verified. And it
alleged that the Sandusky County Board of Elections invalidated six part-petitions
for overcounting signatures when the circulator statements were in fact accurate.
{¶ 12} The Jones II relators filed a motion to consolidate their case with
Ohio Mfrs. Assn. On June 15, 2016, we dismissed Jones II without prejudice as
premature, and we denied the motion to consolidate as moot. 146 Ohio St. 3d 1412,
2016-Ohio-3390, 51 N.E.3d 658.
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{¶ 13} On August 15, 2016, we decided Ohio Mfrs. Assn., rejecting OMA’s
claim that part-petitions are invalid if any names thereon are crossed out by
unauthorized persons. ___ Ohio St.3d ___, 2016-Ohio-5377, ___ N.E.3d ___, at
¶ 11-32. However, we invalidated 10,303 petition signatures, due to overcounting
on the circulators’ statements and the use of two ineligible circulators. Id. at ¶ 46.
Pursuant to Ohio Constitution, Article II, Section 1g, we gave the petition
committee members ten days in which to make up the 5,044 signature shortfall
established by the evidence in that case, and we ordered that if they were successful,
the initiative should be resubmitted to the General Assembly for consideration. Id.
at ¶ 47.1
{¶ 14} On August 17, 2016, the committee filed the present mandamus
action. State ex rel. Jones v. Husted, case No. 2016-1235 (“Jones III”). Jones III
seeks the same relief that Jones II sought: restoration of the signatures invalidated
during the re-review by the county boards of elections, restoration of the Cuyahoga
County signatures invalidated by Husted, correction of the Sandusky County Board
of Election’s alleged error, and an order breaking the tie in Delaware County in
favor of counting those signatures.
{¶ 15} On August 31, 2016, the committee proffered supplementary part-
petitions to Husted to further its attempt to proceed directly to the November 2017
ballot, but he refused to accept them for filing.
{¶ 16} On September 6, 2016, after the committee had submitted additional
signatures pursuant to our decision in Ohio Mfrs. Assn. and sufficient signatures
1
Chief Justice O’Connor dissented from the portion of the decision invalidating part-petitions due
to overcounting. ___ Ohio St.3d ___, 2016-Ohio-5377, ___ N.E.3d ___, at ¶ 54. She and Justice
O’Neill each dissented from the decision to return the initiative to the legislature, rather than place
it on the ballot, assuming that the initiative proponents cured the shortfall. Id. at ¶ 55, 61-62. Justice
O’Donnell, joined by Justice Kennedy, dissented in part, on the grounds that the court should have
also invalidated the part-petitions circulated by Fifi Harper. Id. at ¶ 58. Justice Lanzinger agreed
with Justice O’Donnell regarding the Harper part-petitions, but she would have also invalidated all
part-petitions containing cross-outs. And Justice Pfeifer dissented from the opinion in its entirety.
Id. at ¶ 63.
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had been validated, Husted resubmitted the proposed initiative to the General
Assembly.
The motion for leave to amend
{¶ 17} In his answer, Husted asserted the affirmative defense of failure to
join necessary parties. Anticipating that Husted might argue that the county boards
were necessary parties, the committee moved for leave to amend the complaint to
add them, if necessary. The absence of the county boards has not become an issue,
and we deny the motion as moot.
Procedural arguments
{¶ 18} In his merit brief, filed on August 24, 2016, Husted offers almost no
substantive rejoinder to the allegations. Instead, he asserts that the claims in Jones
III are barred by res judicata, laches, and other procedural bars. The relators in
Ohio Mfrs. Assn. have submitted an amicus brief “Not Expressly Supporting A
Party,” in which they make similar arguments about laches, waiver, and other
procedural impediments. None of these arguments has merit.
{¶ 19} When Jones II was filed seeking to restore wrongly invalidated
signatures, the boards of elections filed a motion for judgment on the pleadings,
claiming mootness. They argued that because Husted had certified the petitions to
the General Assembly, notwithstanding the allegedly improper signature
invalidations, “adding the [* * *] signatures that were allegedly improperly
invalidated [* * *] is entirely inconsequential.”
{¶ 20} In response, the committee observed that those invalidated
signatures might not remain inconsequential, depending on the outcome of OMA’s
petition challenge:
The instant action [Jones II] seeks to recover the signatures that were
improperly rejected by the Respondents because [those signatures]
will be necessary to the sufficiency of the Petition in the event that
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the legal challenge filed by the Petition’s opponents succeeds in
reducing the Petition’s sufficiency below either the 3% statewide
threshold or the 44 county threshold.
{¶ 21} We concluded that the committee and the boards were describing a
problem not of mootness, but of ripeness. The committee’s claims were contingent
upon future events that might or might not occur. “In order to be justiciable, a
controversy must be ripe for review.” Keller v. Columbus, 100 Ohio St. 3d 192,
2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. A claim is not ripe if it rests on contingent
events that may never occur at all. State v. Booker, 10th Dist. Franklin No. 15AP-
42, 2015-Ohio-5118, ¶ 21; U.S. Bank, N.A. v. 2900 Presidential Drive, L.L.C., 2d
Dist. Greene No. 2013 CA 60, 2014-Ohio-1121, ¶ 32-35. For this reason, we
unanimously dismissed Jones II without prejudice as unripe. 146 Ohio St. 3d 1412,
2016-Ohio-3390, 51 N.E.3d 658. The logic behind that decision remains valid and
overcomes all the procedural arguments advanced by Husted and OMA.
{¶ 22} For example, Husted contends that res judicata applies because the
committee should have raised the claims it raises in this case either in Jones I or in
Ohio Mfrs. Assn. “Res judicata precludes a party from * * * raising matters that
should have been brought by the party in a prior action involving the same parties.”
Buckner v. Bank of New York, 12th Dist. Clermont No. CA2013-07-053, 2014-
Ohio-568, ¶ 38. The committee could not have asserted these claims in the prior
cases because they were not yet ripe, which means res judicata cannot apply. Nor
could this be, as OMA contends, a collateral attack on a final judgment, if the
judgment did not and could not have adjudicated these issues.
{¶ 23} Alternatively, Husted suggests that laches should apply because the
committee “waited for 50 days after the Secretary certified the Proposed Initiative
to the General Assembly to bring their Second Mandamus” and they “have no
excuse for their delay.” (Emphasis sic.) But the same ripeness problem existed in
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the second mandamus action (Jones II); until this court invalidated 10,303 petition
signatures in Ohio Mfrs. Assn., the committee had no viable cause of action to seek
to increase its signature total. If it had filed its complaint to have more signatures
counted when the petition was already with the General Assembly, we would have
recognized the complaint as a quintessential request for an advisory opinion and
dismissed it for failure to state a claim. OMA’s assertion that the committee waived
its mandamus claims by not filing earlier fails for the same reason.
{¶ 24} OMA suggests that mandamus is not available, because the
committee has an alternative remedy at law. That alternative, according to OMA,
was a challenge proceeding under Ohio Constitution, Article II, Section 1g. Section
1g states that this court has exclusive original jurisdiction “over all challenges made
to petitions and signatures upon such petitions under this section.” By its plain
language, Section 1g creates a cause of action to challenge, that is, to oppose
signatures and part-petitions. It does not create a broader cause of action only to
challenge decisions by the secretary or the county boards to reject petitions. That
cause of action still falls under this court’s original mandamus jurisdiction.
{¶ 25} Likewise, Husted’s assertion that the committee’s mandamus claims
were compulsory counterclaims in Ohio Mfrs. Assn. is meritless. A claim cannot
be compulsory if the forum lacks jurisdiction to hear it. State ex rel. Internatl.
Union of Operating Engineers, Local Nos. 18, 18A, 18B, 18C, 18RA, AFL-CIO v.
Simmons, 58 Ohio St. 3d 247, 250, 569 N.E.2d 886 (1991).
{¶ 26} Finally, Husted asserts that Ohio Mfrs. Assn. should not apply
retroactively. As a general rule, Ohio court decisions apply retrospectively, unless
a party has contract rights or vested rights under the prior decision. Peerless Elec.
Co. v. Bowers, 164 Ohio St. 209, 210, 129 N.E.2d 467 (1955). But an Ohio court
has discretion to apply its decision prospectively only after weighing three
considerations:
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whether the decision establishes a new principle of law that
was not foreshadowed in prior decisions; whether retroactive
application of the decision promotes or retards the purpose
behind the rule defined in the decision; and whether
retroactive application of the decision causes an inequitable
result.
DiCenzo v. A-Best Prods. Co., Inc. 120 Ohio St. 3d 149, 2008-Ohio-5327, 897
N.E.2d 132, ¶ 25.
{¶ 27} As to the first factor, not every case of first impression automatically
operates prospectively only. Rather, to operate prospectively only, the new
principle of law must arise from a case of first impression and must be one not
foreshadowed by previous decisions. Beaver Excavating Co. v. Testa, 134 Ohio
St.3d 565, 2012-Ohio-5776, 983 N.E.2d 1317, ¶ 44. Our decision in Ohio Mfrs.
Assn. was foreshadowed by our earlier opinion in State ex rel. Citizens for
Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St. 3d 167, 602 N.E.2d
615 (1992), in which we held that an error in a circulator’s statement would not
invalidate the entire part-petition if the signature miscount did not promote fraud.
Id. at 172-173.
{¶ 28} The two remaining factors present more compelling reasons for
retroactive application. Ohio Mfrs. Assn. established the principle that a signature
cross-out should not invalidate the entire part-petition. Applying that holding
retroactively would obviously promote the purpose behind the rule: it would
reinstate otherwise valid petition signatures from Ohio voters that were invalidated
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improperly. And there is no credible claim that counting valid part-petitions is an
inequitable result.2
{¶ 29} In sum, we reject Husted and OMA’s procedural objections to this
action.
Arguments on the merits
Part-petitions invalidated by Husted due to deleted signatures
{¶ 30} As noted above, Ohio Mfrs. Assn. confirmed that crossed-out
signatures do not invalidate an entire part-petition, irrespective of who does the
crossing out. ___ Ohio St.3d ___, 2016-Ohio-5377, ___ N.E.3d ___, at ¶ 11-32.
Contrary to that rule, Husted invalidated 1,370 Cuyahoga County part-petitions
containing 20,102 signatures that the board of elections had twice deemed valid.
And he has admitted that he did so solely on the basis of the signature deletions.
By simple application of Ohio Mfrs. Assn., these signatures should be counted.
{¶ 31} Husted responds that some of these part-petitions are also invalid
due to overcounting. As evidence, he submits two part-petitions: Cuyahoga County
part-petition No. 001411, containing 2 validated signatures, and Cuyahoga County
part-petition No. 001762, containing 8 validated signatures. He implies that there
are additional such part-petitions and that the committee needed to prove which of
the other 1,368 Cuyahoga County part-petitions did not contain verification defects.
But Husted has never revealed which part-petitions he invalidated, making it
impossible for the committee to prove their validity. Under the circumstances, it is
impossible to confirm that Husted invalidated these part-petitions for reasons other
than signature deletions.
{¶ 32} We therefore deduct the 10 signatures identified above, and we order
Husted to certify 20,092 additional signatures in Cuyahoga County.
2
Husted suggests that it would be inequitable to count part-petitions that were invalidated for
signature cross-outs if those part-petitions are also defective due to circulator overcounts. We agree,
and we have therefore discounted those part-petitions.
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Part-petitions invalidated by the boards due to deleted signatures
{¶ 33} The committee identifies part-petitions from seven counties that
were invalidated on the basis of signature deletions. However, a small subset of
those part-petitions also have overcounting defects and are therefore invalid for that
reason.
{¶ 34} In Adams County, the following part-petitions were invalidated by
the county board of elections due solely to signature deletions:
PART-PETITION NUMBER OF
NUMBER VALIDATED
SIGNATURES
000006 18
000007 18
000008 23
000009 24
000010 21
000011 19
000012 14
000013 17
000014 18
000015 21
000016 17
000017 12
000018 16
000019 14
000025 4
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Adams County part-petition Nos. 000020 (containing 12 signatures) and 000022
(containing 10 signatures), which the committee identified as having been
invalidated based on signature deletions, also contain signature overcounts.
Therefore, we order Husted to certify the validity of 256 additional signatures in
Adams County.
{¶ 35} In Darke County, three part-petitions were wrongly invalidated:
Darke County part-petition Nos. 000008 (containing 2 signatures), 000011
(containing 2 signatures), and 000025 (containing 10 signatures). We therefore
order Husted to certify the validity of 14 additional signatures in Darke County.3
{¶ 36} In Hocking County, three part-petitions were wrongly invalidated:
Hocking County part-petition Nos. 000001 (containing 9 signatures), 000002
(containing 3 signatures), and 000012 (containing 11 signatures). We order Husted
to certify the validity of 23 additional signatures in Hocking County.
{¶ 37} In Madison County, eight part-petitions were wrongly invalidated.
PART-PETITION NUMBER OF VALIDATED
NUMBER SIGNATURES
000003 16
000004 19
000005 18
000007 4
000014 6
000024 2
000034 1
000043 1
3
This number matches the number in the committee’s complaint and brief. The figure of 16
signatures in the second affidavit of the committee’s attorney, Derek Clinger, seems to be a
typographical error.
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One part-petition identified by the committee, Madison County part-petition No.
00032, was not invalidated on the basis of signature deletions. Rather, it simply
contained no valid signatures. Accordingly, we order Husted to certify the validity
of 67 additional signatures in Madison County.
{¶ 38} In Putnam County, two part-petitions were wrongly invalidated:
Putnam County part-petition Nos. 000001 (containing 17 signatures) and 000004
(containing 1 signature). We order Husted to certify the validity of 18 additional
signatures in Putnam County.
{¶ 39} In Union County, three part-petitions were wrongly invalidated:
Union County part-petition Nos. 000003 (containing 22 signatures), 000007
(containing 18 signatures), and 000013 (containing 16 signatures). We order
Husted to certify the validity of 56 additional signatures in Union County.
{¶ 40} Finally, the committee asserts through the second affidavit of
attorney Derek Clinger that in Miami County, the board went from validating 134
part-petitions (containing 1,188 valid signatures) in the first review to validating 77
part-petitions (557 signatures) following the re-review. This affidavit also states
that of the 57 part-petitions invalidated during the second round, only 16 contained
problems with the circulator statement.
{¶ 41} But the affidavit then asserts, “There are sixty-seven (67) part-
petitions with struck out signatures that do not have” defective circulator
statements, “containing 781 signatures that were certified as valid” during the
December 2015 first review. But how can there be 67 part-petitions wrongly
invalidated during the re-review when the board invalidated only 57 part-petitions
in the second review? The committee’s demonstrative evidence is of no assistance:
The committee provides an exhibit listing all 136 part-petitions submitted to the
board, with columns to indicate if each had an overcount, a signature deletion, or
both. But the exhibit does not indicate which part-petitions were invalidated in the
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initial review, which were invalidated in the re-review, and which were certified as
valid.
{¶ 42} Based on the evidence in the record, we find no error regarding the
signature totals in Miami County.
The tie vote in Delaware County
{¶ 43} The committee asserts that Husted has a clear legal duty under R.C.
3501.11(X) to break the tie vote at the Delaware County Board of Elections and
that Ohio Mfrs. Assn. requires him to break the tie in favor of counting the
signatures. Husted responds that he has no duty to break the tie because R.C.
3501.11(X) requires a board of elections to submit a matter involving a tie vote to
him within 14 days of the vote and the board missed that deadline.
{¶ 44} Both arguments miss the point. As noted above, the Delaware
County Board of Elections initially certified 85 valid part-petitions, containing 324
valid signatures. It has never rescinded that certification. And when Husted sent
the part-petitions back to the boards for “re-review” and “re-certification,” his
directive did not cancel their previous certifications. The Delaware County board
entertained a motion to invalidate certain part-petitions, but the motion did not pass.
{¶ 45} Therefore, the only resolution that exists from the Delaware County
board is a certification of 324 valid signatures. That certification should be honored
unless Husted presents an alternative basis to reject the board’s initial certification.
{¶ 46} He does make an alternative argument, asserting that upon applying
the principles stated in Ohio Mfrs. Assn., the actual number of valid signatures on
the Delaware County part-petitions was 241, not 324. However, he presents
evidence of only two part-petitions that are invalid based upon Ohio Mfrs. Assn.:
Delaware County part-petition Nos. 000064 (containing 8 signatures) and 000082
(containing 2 signatures). We therefore deduct those 10 signatures, and we order
Husted to certify the validity of 314 additional signatures in Delaware County.
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The signatures in Sandusky County
{¶ 47} The committee alleges that during the re-review process, the
Sandusky County Board of Elections invalidated six part-petitions for containing a
circulator overcount when in fact there was no overcount. This claim fails for lack
of evidence.
{¶ 48} The committee presents an exhibit regarding these part-petitions
rejected by the Sandusky County board during the re-review. Clinger was allegedly
told by a board employee that the board invalidated petitions for overcounts but not
for signature deletions. But he claims that his review of the rejected part-petitions
in the exhibit reveals that six part-petitions, containing 20 signatures, do not have
overcounts and therefore should not have been rejected.
{¶ 49} The six part-petitions in question are Sandusky County part-petition
Nos. 000066, 000068, 000071, 000087, 000092, and 000097. But the committee’s
exhibit contains only two of these part-petitions: Sandusky County part-petition
Nos. 000066 and 000068. There is no evidence, therefore, to establish that the
board incorrectly invalidated the other four part-petitions.
{¶ 50} The copy of Sandusky County part-petition No. 000068 in the
committee’s exhibit is missing its circulator statement, so the committee has failed
to establish that the signatures were not overcounted.
{¶ 51} As for Sandusky County part-petition No. 000066, the only evidence
in the record that this part-petition was invalidated is Clinger’s hearsay account of
what someone told him and the word “invalid” written atop the part-petition by an
unknown person. When coupled with Husted’s evidence calling into question the
authenticity of some of the part-petitions in the committee’s exhibit, this evidence
is insufficient for us to declare with any confidence that this part-petition was
incorrectly invalidated.
{¶ 52} For these reasons, we decline to order Husted to validate additional
signatures from Sandusky County.
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Conclusion
{¶ 53} Although we found in Ohio Mfrs. Assn., ___ Ohio St.3d ___, 2016-
Ohio-5377, ___ N.E.3d ___, that the December 2015 petition contained an
insufficient number of signatures, that finding was based on the limited evidence
that was before the court in that case. As stated above, we order Husted to validate
20,092 additional signatures from Cuyahoga County, 256 additional signatures
from Adams County, 14 additional signatures from Darke County, 23 additional
signatures from Hocking County, 67 additional signatures from Madison County,
18 additional signatures from Putnam County, 56 additional signatures from Union
County, and 314 additional signatures from Delaware County. The evidence
submitted in this case therefore establishes that the petition filing exceeded the
minimum-signature threshold. Thus, it was unnecessary for the committee to
collect additional signatures or for the initiative to be resubmitted to the General
Assembly. We therefore order Husted to rescind his September 6, 2016
transmission of the initiative to the General Assembly. Husted is instead ordered
to accept for verification the supplementary part-petitions proffered to his office on
August 31, 2016, and if they are found to contain sufficient valid signatures, to
place the matter on the November 2017 general-election ballot.
Writ granted in part
and denied in part,
and motion for leave to amend denied as moot.
O’CONNOR, C.J., and FRENCH and O’NEILL, JJ., concur.
PFEIFER, J., concurs in part and dissents in part, with an opinion.
O’DONNELL, J., dissents, with an opinion joined by KENNEDY, J.
LANZINGER, J., dissents.
_________________
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PFEIFER, J., concurring in part and dissenting in part.
{¶ 54} I concur in the portion of the judgment granting the writ of
mandamus, in the ultimate conclusion of the majority that the December 2015
petition filing exceeded the minimum-signature threshold, and in the order the court
issues. I dissent in part only because I would hold that the part-petitions contain
more valid signatures than the lead opinion recognizes.
{¶ 55} I would add to the signature total the signatures stricken due to
alleged overcounting in Cuyahoga County (10 signatures), Adams County (22
signatures), Delaware County (10 signatures), and Sandusky County (20
signatures), for the reasons stated in my dissent in Ohio Mfrs. Assn. v. Ohioans for
Drug Price Relief Act, __ Ohio St.3d ___, 2016-Ohio-5377, __ N.E.3d ___,
¶ 66-79.
_________________
O’DONNELL, J., dissenting.
{¶ 56} Respectfully, I dissent.
{¶ 57} R.C. 3501.38(E)(1) requires petition circulators to execute a
statement on each part-petition containing “the circulator’s name, the address of
the circulator’s permanent residence, and the name and address of the person
employing the circulator to circulate the petition, if any.” (Emphasis added.)
{¶ 58} As I explained in my separate opinion in Ohio Mfrs. Assn. v. Ohioans
for Drug Price Relief Act, ___ Ohio St.3d ___, 2016-Ohio-5377, ___ N.E.3d ___,
one of the circulators, Fifi Harper did not do that. The address she provided on the
part-petitions she circulated was a private mail box at “Pack Ship and Print Center,”
a business in a commercial strip mall. It is not a residential address, and Harper
never lived there. As a circulator, she is not permitted to disregard Ohio’s election
law by making a false representation in her circulator’s statement that a
nonresidential address is her residential address.
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{¶ 59} In my view, the part-petitions she circulated containing a false
residential address are invalid and should be stricken. Without these part-petitions,
the Committee for Ohioans for Drug Price Relief Act did not obtain the requisite
number of valid signatures from 44 of 88 Ohio counties as required by Article II,
Section 1g of the Ohio Constitution.
{¶ 60} In this case, the committee seeks to compel Secretary of State Jon
Husted to count more than 21,000 signatures that he previously invalidated.
However, there is a dual requirement for this petition drive: to obtain the required
total number of signatures and to obtain a sufficient number of those signatures
from 44 of 88 counties in Ohio. Thus, even if Husted is required to count the
additional 21,000 signatures, the petition drive fails if the constitutional mandate to
obtain sufficient signatures from the requisite number of counties has not been met.
{¶ 61} Although the majority orders Husted to certify the validity of 67
additional signatures in Madison County, 35 of those were collected on part-
petitions circulated by Harper that contained a false residential address and should
be stricken. R.C. 3519.06(D); see also Kyser v. Cuyahoga Cty. Bd. of Elections, 36
Ohio St. 2d 17, 23, 303 N.E.2d 77 (1973). And without the signatures on the part-
petitions Harper circulated in Madison County, the committee lacks sufficient
signatures from 44 of 88 counties as required by Article II, Section 1g of the Ohio
Constitution.
{¶ 62} Accordingly, because Husted had no obligation to submit the
initiative petition to the General Assembly, I would deny the writ of mandamus.
KENNEDY, J., concurs in the foregoing opinion.
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McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, and
Derek S. Clinger, for relators.
18
January Term, 2016
Michael DeWine, Attorney General, Steven T. Voigt, Principal Assistant
Attorney General, and Brodi J. Conover, Assistant Attorney General, for
respondent.
Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, Nelson M.
Reid, and James P. Schuck, urging denial of the writ for amici curiae Ohio
Manufacturers’ Association, Ohio Chamber of Commerce, Pharmaceutical and
Research Manufacturers of America, Keith A. Lake, and Ryan R, Augsburger.
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19