State ex rel. Flak v. Betras (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Flak v. Betras, Slip Opinion No. 2017-Ohio-8109.]
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. 2017-OHIO-8109THE STATE EX REL. FLAK ET AL. v. BETRAS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Flak v. Betras, Slip Opinion No. 2017-Ohio-8109.]
Mandamus—Writs of mandamus sought to compel county board of elections to
place proposed city-charter amendments on election ballot—Proposed
amendments exceed constitutional authority of a municipality’s authority to
enact—Writs denied.
(No. 2017-1239—Submitted September 29, 2017—Decided October 6, 2017.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} This expedited election matter concerns two efforts to place
proposed amendments to the Youngstown City Charter on the November 2017
ballot: the People’s Bill of Rights for Fair Elections and Access to Local
Government (“the Elections Amendment”),1 and the “Youngstown Drinking Water
1
Relators Lynn Anderson, Susan L. Beiersdorfer, Kathleen K. Berry, Marguerite Linda Felice, and
Dario David Hunter comprise the Committee of Petitioners for the Elections Amendment.
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Protection Bill of Rights” (“the Water Amendment”).2 Relators seek writs of
mandamus to compel respondents, the Mahoning County Board of Elections and
its individual members,3 to certify relators’ petitions to place the proposed
amendments on the ballot. We deny the writs.
Background
The Elections Amendment (Section 69.1)
{¶ 2} The Elections Amendment would add a new Section 69.1 to the city
charter declaring that the people of Youngstown have a right to fair elections and
access to local government. The Elections Amendment would, among other things,
prohibit campaign contributions to local candidates or issues from anyone other
than registered Youngstown voters, cap any such contributions at $100 per
contributor per candidate or issue, adopt a “top-two” primary election for mayor
and for ward representative, and mandate the use of paper ballots to verify
electronic election results.
{¶ 3} Section (d) of the Elections Amendment, captioned “Right to
Enforcement,” affirms the right of the people of Youngstown to enforce the rights
set forth in the amendment:
If the City of Youngstown fails to enforce or defend this
Amendment, or, a court fails to uphold this Amendment, any natural
person may enforce this Amendment through nonviolent direct
action or via a suit at law or in equity as a private attorney general
plaintiff, for damages and costs of litigation, including, without
limitation, expert and attorney fees. If any appointed or elected
2
Relators Christine Agnes Flak, Mary C. Khumprakob, Raymond Nakley Jr., Young Tensley, and
Hattie Wilkins comprise the Committee of Petitioners for the Water Amendment.
3
The members of the Mahoning County Board of Elections are David J. Betras, Mark E. Munroe,
Robert J. Wasko, and Tracey S. Winbush.
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official infringes upon the people of Youngstown’s adoption of this
Amendment through their right of democratic initiative power, any
natural person may enforce these rights through nonviolent direct
action.
Section (d) provides that “City of Youngstown law enforcement, and cooperating
agencies acting within the jurisdiction of the City of Youngstown, shall have no
lawful authority to surveil, detain, arrest, or otherwise impede natural persons
enforcing these rights.”
The Water Amendment (Section 133)
{¶ 4} The second proposed charter amendment, the Water Amendment,
would add a new Section 133 to the city charter. It declares that the people of
Youngstown, “along with ecosystems and natural communities within the city,
possess the right to clean water, air, and soil, and to be free from activities that
would violate this right and expose citizens to the harmful effects of contaminants
in their water supply, including, but not limited to, the drilling of new wells or
extraction of oil and gas.” Section (b) of the Water Amendment contains the same
language as Section (d) of the Elections Amendment, authorizing private citizens
to enforce their rights through nonviolent direct action or by filing suit as a private
attorney general. And the Water Amendment also contains the provision barring
“City of Youngstown law enforcement, and cooperating agencies acting within the
jurisdiction of the City of Youngstown” from “surveil[ing], detain[ing], arrest[ing],
or otherwise imped[ing] natural persons enforcing these rights.”
Mahoning County Board of Elections proceedings
{¶ 5} On July 24, 2017, the Water Amendment committee submitted its
part-petitions to the Youngstown City Clerk. The Mahoning County Board of
Elections (“BOE”) certified a sufficient number of valid signatures for the Water
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Amendment to qualify for the ballot.4 On August 23, the Youngstown City Council
unanimously passed an ordinance instructing the BOE to place the Water
Amendment on the November 2017 ballot.
{¶ 6} The Elections Amendment committee delivered its part-petitions to
the city clerk on August 7, 2017. After the BOE validated the signatures, the city
council unanimously passed a resolution instructing the BOE to place the Elections
Amendment on the November ballot. The BOE received the two proposed
amendments on August 25, 2017.
{¶ 7} On September 6, 2017, the BOE met to consider placement of the
two proposed amendments on the ballot. BOE Chairman Mark Munroe expressed
concern that both amendments “contain provisions that are beyond the scope of
cities to enact via initiative.” BOE member David Betras agreed that the proposed
amendments contained provisions that exceeded the authority of the city to adopt.
The BOE then voted four to zero not to certify the amendments to appear on the
ballot, on the grounds that they exceeded the city’s initiative power.
{¶ 8} The next day, September 7, relators filed the present expedited
election complaint against the BOE and its individual members. The parties have
filed briefs and evidence in accordance with the calendar for expedited election
cases set forth in S.Ct.Prac.R. 12.08.
Legal Analysis
{¶ 9} To be entitled to a writ of mandamus, a relator must establish, by
clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a
clear legal duty on the part of the respondent to provide it, and (3) 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, 13. When reviewing a
4
The complaint identifies the numbers of signatures validated on both petitions, without expressly
noting that the numbers were sufficient for the proposed amendments to qualify for the ballot.
However, the sufficiency of the signatures does not appear to be in dispute.
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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.
{¶ 10} Under the Ohio Constitution, 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.” Ohio Constitution, Article XVIII, Section 3. The Constitution
extends that same authority 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 * * *.”5 Ohio Constitution, Article
II, Section 1f. These clauses impose limitations on the permissible subject matter
of a municipal initiative or referendum petition. See, e.g., Buckeye Community
Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539, 545, 697 N.E.2d 181 (1998)
(holding that the phrase “by legislative action” in Article II, Section 1f means that
a municipal ordinance is not subject to referendum if it constitutes an
administrative, rather than a legislative, action).
{¶ 11} R.C. 3501.11(K)(1) provides that a county board of elections must
“[r]eview, examine, and certify the sufficiency and validity of petitions.” We have
held that the statute gives the county boards of election authority “to determine
whether a ballot measure falls within the scope of the constitutional power of
referendum or initiative.” State ex rel. Youngstown v. Mahoning Cty. Bd. of
Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9.
5
“An initiative is a proposal which allows the people to directly enact a law if they accept the
proposal in an election and a referendum is a proposal which allows the people to directly repeal a
law which has already been enacted by the legislature.” State ex rel. Todd v. Felger, 7th Dist.
Columbiana No. 06 CO 38, 2007-Ohio-731, ¶ 3.
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{¶ 12} Our jurisprudence has distinguished between an elections board’s
determining that a proposed initiative may be unconstitutional and an elections
board’s determining that a proposed initiative falls outside the scope of the
permissible subject matter of a municipal initiative. Thus, in Youngstown, we held
that a county board of elections cannot refuse to certify a ballot measure based on
its assessment that the measure, in substance, would be unconstitutional if enacted.
Id. at ¶ 4-5, 12 (requiring a county board of elections to place a proposed city-
charter amendment on the ballot despite its concern that the measure would be
unenforceable because it conflicted with the Ohio Constitution). This court “ ‘will
not consider, in an action to strike an issue from the ballot, a claim that the proposed
amendment would be unconstitutional if approved, such claim being premature.’ ”
State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d
419, ¶ 16, quoting State ex rel. Cramer v. Brown, 7 Ohio St.3d 5, 6, 454 N.E.2d
1321 (1983).
{¶ 13} Just last year, however, this court held that a county board of
elections may properly refuse to certify a proposed municipal ordinance to the
ballot when the ordinance encompasses a matter beyond the scope of the
municipality’s authority to enact. State ex rel. Sensible Norwood v. Hamilton Cty.
Bd. of Elections, 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696, ¶ 22. In
Sensible Norwood, the county board of elections refused to certify to the ballot a
proposed municipal ordinance, the effect of which would have been to change the
city’s marijuana ordinances. We noted that a municipality has authority to define
misdemeanor offenses but that the power to define felonies is committed to the
General Assembly. Id. at ¶ 10. And because the power to designate felonies is not
a matter that municipalities are “authorized by law to control by legislative action”
(in the language of Article II, Section 1f of the Ohio Constitution), the supporters
of the proposed ordinance had no legal right to place the measure on the ballot. Id.
at ¶ 12.
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{¶ 14} It is fair to say that it is sometimes difficult to distinguish between a
provision that a municipality is not authorized to adopt by legislative action
(something an elections board may determine per Sensible Norwood) and one that
is simply unconstitutional (something an elections board may not determine, per
Youngstown, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, at ¶ 12). But
that is the line our caselaw has drawn.
{¶ 15} Sensible Norwood is directly on point here. Here, the BOE rejected
the petitions, in part because the proposed amendments purport to create a private
cause of action. Just as a municipality may not create a felony, a municipality is
not authorized to create new causes of action. See Ohio Constitution, Article XVIII,
Section 3; see also Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-
546, 883 N.E.2d 377, ¶ 150 (“state law * * * determines what injuries are
recognized and what remedies are available”).
{¶ 16} The dispositive question in this mandamus action is whether the
BOE violated a clear legal duty by refusing to certify relators’ petitions to place the
proposed amendments on the ballot. In refusing to certify the petitions, the BOE
acted consistently with our most recent pronouncement on the matter—Sensible
Norwood. We cannot conclude that in doing so it violated a clear legal duty. Thus,
we deny the extraordinary writs.
{¶ 17} The dissenting opinion not only concludes that the BOE violated a
clear legal duty but also would declare the recently enacted 2016 Sub.H.B. No. 463
(“H.B. 463”), effective April 6, 2017, unconstitutional. But we do not reach
constitutional issues unless it is necessary to do so. State ex rel. BSW Development
Group v. Dayton, 83 Ohio St.3d 338, 345, 699 N.E.2d 1271 (1998). Adherence to
this principle seems particularly appropriate in this expedited election matter, with
its short time frame for consideration, limited briefing, and lack of participation by
the state, see R.C. 2721.12(A). Because the matter may be properly resolved under
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our pre-H.B. 463 caselaw, we leave consideration of the constitutionality of the
new enactment for another day.
{¶ 18} Relators have failed to establish a clear legal duty on the BOE’s part
to certify their petitions to place the proposed amendments on the November ballot,
and we therefore deny the requested writs of mandamus.
Writs denied.
O’DONNELL, KENNEDY, FRENCH, and DEWINE, JJ., concur.
FISCHER, J., dissents, with an opinion joined by O’CONNOR, C.J., and
O’NEILL, J.
__________________
FISCHER, J., dissenting.
{¶ 19} Recently, in State ex rel. McGinn v. Walker, ___ Ohio St.3d ___,
2017-Ohio-7714, __ N.E.3d ___, this court denied requests for writs of mandamus
to compel county boards of elections to certify initiative petitions to place county
charters on the November ballot. In that case, we did not address the
constitutionality of R.C. 3501.11(K)(2). See id. at ¶ 24 (plurality opinion).
However, although today’s majority does not reach the issue, the constitutionality
of that statute is now squarely before us. I conclude that to the limited extent that
it incorporates R.C. 3501.38(M), R.C. 3501.11(K)(2) violates the separation-of-
powers doctrine by granting the power of judicial review to county boards of
elections, an arm of the executive branch; therefore, I must respectfully dissent. I
would hold that R.C. 3501.11(K)(2) is unconstitutional to that limited extent, and I
would grant the writs of mandamus requested in this case.
I. ANALYSIS
{¶ 20} Respondent Mahoning County Board of Elections (“the BOE”)
makes two primary arguments in opposition to the requested writs of mandamus.
First, it contends that mandamus cannot issue because relators, the committees of
petitioners for the two proposed city-charter amendments (and their individual
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members), have an adequate remedy in the ordinary course of the law. Second, the
BOE argues that the proposed amendments are not proper initiative measures and
that a county board of elections has the authority to make that determination.
A. Adequate remedy at law
{¶ 21} The relator in an expedited election case almost always lacks an
adequate remedy at law because the relevant election was imminent at the time the
county board of elections took whatever action the relator is complaining of. See,
e.g., State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584, 2010-
Ohio-1176, 925 N.E.2d 601, ¶ 17. As was true in previous cases, “given the
proximity of the election, an injunction would arguably not constitute an adequate
remedy because any ‘appellate process would last well past the election.’ ” State
ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289, 292, 649 N.E.2d
1205 (1995), quoting State ex rel. Smart v. McKinley, 64 Ohio St.2d 5, 6, 412
N.E.2d 393 (1980); State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio
St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18.
{¶ 22} R.C. 3511.04(B) requires county boards of elections to have
absentee ballots under the Uniformed and Overseas Citizens Absentee Voting Act
of 1986 (“UOCAVA”), 42 U.S.C. 1973ff, ready for distribution no later than 45
days before each election; the deadline for having the absentee ballots ready for this
year’s general election was Monday, September 25, see R.C. 1.14. This court has
held that a party seeking ballot access has no adequate remedy in the ordinary
course of the law when the deadline for UOCAVA ballots is imminent. State ex
rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio St.3d 487, 2014-Ohio-
4077, 20 N.E.3d 678, ¶ 22-24 (holding that the relators had no adequate remedy at
law when they filed suit 18 days before the UOCAVA deadline).
{¶ 23} Here, the BOE does not allege that relators could have used a special
statutory procedure to challenge the BOE’s decision. By contrast, in McGinn, there
was at least an argument that the relators had two available remedies: they could
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have filed a protest pursuant to R.C. 307.95, or they could have sought an
adjudication of the petitions’ validity from the common pleas court, under R.C.
307.94. ___ Ohio St.3d ___, 2017-Ohio-7714, __ N.E.3d ___, at ¶ 28 (DeWine, J.,
concurring in judgment only).
{¶ 24} Those statutory remedies are not available to relators in this case.
R.C. 307.94 addresses initiative petitions to adopt county charters. The statute
authorizes a petition committee to file either a protest or an action in the common
pleas court if the county board of elections invalidates a county-charter petition. It
does not authorize those remedies for municipal-charter petitions, which are
governed by different sections of the Revised Code.
{¶ 25} The General Assembly recently enacted 2016 H.B. No. 463 (“H.B.
463”), which purported to expand the duties of the county boards of elections. Prior
to the passage of H.B. 463, there does not appear to have been a statutory
mechanism for appealing an elections board’s decision concerning a municipal-
charter petition. Even under the amended statute, the committee for a municipal-
charter petition has no statutory cause of action in the common pleas court. But
along with expanding the review authority of county elections boards, H.B. 463 did
add one avenue of appeal: “The finding of the board shall be subject to challenge
by a protest filed pursuant to division (B) of section 307.95 of the Revised Code.”
R.C. 3501.38(M)(1)(b).
{¶ 26} The first requirement of R.C. 307.95 is that a protest under that
section must be filed no later than 4:00 p.m. “of the ninety-seventh day before the
election.” R.C. 307.95(B). The 97th day before the November 7, 2017 election
was Wednesday, August 2, 2017, more than one month before the BOE even
invalidated the petitions in this case. A statutory protest that one is time-barred
from pursuing before one’s cause of action even arises cannot constitute an
adequate alternative remedy.
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{¶ 27} Nor is the BOE correct that relators had an adequate remedy in the
form of a declaratory-judgment action to challenge the constitutionality of H.B.
463, coupled with a request for a prohibitory injunction to block the BOE from
applying the terms of the new statute. The BOE faults relators for “many months
of inaction” during which they could have challenged the new statutory enactments
in a nonexpedited fashion.
{¶ 28} There are at least two significant flaws in the BOE’s argument.
First, relators had no viable claim that would have allowed them to challenge the
statute until the BOE acted under its authority to their detriment. Therefore, if
relators had brought an earlier declaratory-judgment action, any court “would have
recognized the complaint as a quintessential request for an advisory opinion and
dismissed it for failure to state a claim,” State ex rel. Jones v. Husted, 149 Ohio
St.3d 110, 2016-Ohio-5752, 73 N.E.3d 463, ¶ 23 (plurality opinion). Notably, the
BOE’s argument that this case is barred by laches, because relators could have filed
an action for declaratory judgment when H.B. 463 was passed, should fail for the
same reason.
{¶ 29} Second, the BOE’s assertion that a declaratory judgment and a
prohibitory injunction would have been a complete remedy is not correct. An
injunction barring the BOE from using the H.B. 463 statutory amendments to
invalidate the petitions would not be a complete remedy, because it would not have
required the BOE to place the proposed amendments on the ballot. Only a
declaratory judgment coupled with a mandatory injunction could have prevented
the BOE from invalidating the petitions on some other basis. See State ex rel. Ohio
Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410,
¶ 28 (holding that “a prohibitory injunction would not provide relators with the
relief they request: an order to compel the ballot board * * * to certify its approval
of their proposed constitutional amendment as written” [emphasis sic]). And a
mandatory injunction is an extraordinary remedy that does not preclude a writ of
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mandamus. State ex rel. Am. Civ. Liberties Union of Ohio v. Cuyahoga Cty. Bd. of
Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 25; State ex rel.
Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912,
¶ 25.
{¶ 30} Despite the absence of an available remedy, it could be argued that
mandamus should not issue in this case because “ ‘constitutional challenges to
legislation are generally resolved in an action in a common pleas court rather than
in an extraordinary writ action,’ ” State ex rel. Brooks v. O’Malley, 117 Ohio St.3d
385, 2008-Ohio-1118, 884 N.E.2d 42, ¶ 11, quoting Rammage v. Saros, 97 Ohio
St.3d 430, 2002-Ohio-6669, 780 N.E.2d 278, ¶ 11. But this rule is simply a
corollary to the principle that a party must avail itself of alternative legal remedies,
if available. See Rammage at ¶ 11. The rule does not apply in expedited election
cases, in which there is no sufficiently speedy alternative remedy. State ex rel.
Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St.3d 239, 258, 725 N.E.2d 255(2000) (“It is appropriate to consider the merits of [the relator’s] constitutional
claim in this mandamus action because an action for a declaratory judgment and
prohibitory injunction would not be sufficiently speedy in this expedited election
case”).
{¶ 31} I would accordingly conclude, consistently with our prior
jurisprudence in the expedited-election-case context, that relators lacked an
adequate remedy at law.
B. Clear legal right and clear legal duty
{¶ 32} We review a decision of a county board of elections to determine
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.
{¶ 33} Municipalities have “authority to exercise all powers of local self-
government and to adopt and enforce within their limits such local police, sanitary
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and other similar regulations, as are not in conflict with general laws.” Ohio
Constitution, Article XVIII, Section 3. 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. The permissible subject
matter of a municipal initiative or referendum petition is limited by these clauses.
See, e.g., Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539,
545, 697 N.E.2d 181 (1998).
{¶ 34} We have held that if a proposed measure does not conform to the
constitutional prerequisites for a ballot measure, the county boards of elections
“have not only discretion but an affirmative duty to keep such items off the ballot.”
State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239,
2015-Ohio-3761, 41 N.E.3d 1229, ¶ 9.
{¶ 35} However, we have also held that elections boards cannot determine
whether a measure, in substance, would be unconstitutional if enacted. Id. at ¶ 4-
5, 12 (elections board must place measure on the ballot despite its concern that the
measure would be unenforceable because it conflicted with the Ohio Constitution).
Nor can a county board of elections invalidate a proposed ordinance on the grounds
that the measure is unlawful or unconstitutional in the manner of its passage. State
ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 169, 685 N.E.2d
224 (1997).
{¶ 36} The majority concludes that the BOE did not violate a clear legal
duty in rejecting relators’ petitions because the proposed amendments purport to
create a private cause of action. The majority reasons that this case is controlled by
State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio St.3d
176, 2016-Ohio-5919, 69 N.E.3d 696. I disagree. First, we have not previously
considered the issue of who can create a private cause of action. The majority
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decides this issue in a conclusory manner without significant analysis. See majority
opinion at ¶ 15. However, regardless of the answer to the question of who can
create a private cause of action, we should reach the constitutional issue because
Sensible Norwood does not apply to this case.
{¶ 37} The reliance on Sensible Norwood by the BOE and the majority is
misplaced, and not “sensible.” In that case, this court offered two reasons for
invalidating a proposed municipal marijuana ordinance. In addition to holding that
municipalities have no power to define felonies, the court also held that the
ordinance was administrative because it would have changed the manner in which
local police and courts could enforce specific existing laws. Sensible Norwood at
¶ 14-18.
{¶ 38} In Sensible Norwood, the proposed ordinances purported to create
felony offenses, and in doing so they clearly exceeded the power of a municipality
to make the violation of any of its ordinances a misdemeanor. The issue here—
whether a municipality has the authority to create a private cause of action—has
not previously been ruled upon by this court. Whether a municipality can act in
this way required a legal determination—one that went beyond the more
straightforward determination made in Sensible Norwood.
{¶ 39} Ultimately, the constitutionality of the proposed amendments at
issue in this case would need to be determined by a court if they ever became
effective. We have made clear that an unconstitutional proposal may be a proper
item for referendum or initiative and that such a proposal becomes void and
unenforceable only when declared unconstitutional by a court of competent
jurisdiction. Youngstown, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229,
at ¶ 11. I would accordingly reserve a ruling on the constitutionality of the proposed
amendments in the event that they become law and are subsequently challenged in
court.
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{¶ 40} Thus, I disagree with the majority’s conclusion that this case can be
resolved on the basis of this court’s pre-H.B. 463 caselaw, particularly Sensible
Norwood. I would address the constitutionality of R.C. 3501.11(K)(2). And I
would conclude that a county board of elections does not have the authority to
invalidate petitions on the basis that a municipality is not authorized to create
private causes of action, pursuant to our line of decisions including Youngstown
and Hazel, 80 Ohio St.3d 165, 685 N.E.2d 224.
{¶ 41} At issue in Youngstown was a ballot measure to adopt a
“Community Bill of Rights” that would have, among other things, made it unlawful
to extract oil and gas within the city through the process of hydrofracturing.
Youngstown at ¶ 2. The county board of elections refused to certify the measure
because a plurality of this court had concluded in State ex rel. Morrison v. Beck
Energy Corp., 143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, ¶ 34, that local
ordinances that impede or obstruct oil-and-gas-production operations are
unconstitutional and void. Youngstown at ¶ 4. This court granted a writ of
mandamus compelling the elections board to certify the measure, because
[t]he 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.) Id. at ¶ 11.
{¶ 42} Our holding in Youngstown is consistent with the principle that the
authority to make legal rulings is reserved for the judiciary alone. See Norwood v.
Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 116. I would
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accordingly hold that the constitutionality of a municipal ordinance creating a
private cause of action is a matter to be decided in postenactment litigation, not a
subject within the authority of a county board of elections to determine. See Hazel
at 169; Thurn, 72 Ohio St.3d at 293, 649 N.E.2d 1205 (“any claim alleging the
unconstitutionality or illegality of the substance of the proposed ordinances prior to
their approval by the electorate is premature”).
1. The constitutionality of H.B. 463
{¶ 43} The statutory amendments made by H.B. 463 do not change this
analysis. Newly enacted R.C. 3501.11(K)(2) provides that the county boards of
elections must
[e]xamine each initiative petition, or a petition filed under section
307.94 or 307.95 of the Revised Code, received by the board to
determine whether the petition falls within the scope of authority to
enact via initiative and whether the petition satisfies the statutory
prerequisites to place the issue on the ballot, as described in division
(M) of section 3501.38 of the Revised Code. The petition shall be
invalid if any portion of the petition is not within the initiative
power.
R.C. 3501.38(M)(1) provides that the elections boards shall 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
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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; or
(b) [w]hether the petition falls within the scope of a county’s
authority to enact via initiative, including whether the petition
conforms to the requirements set forth in Section 3 of Article X of
the Ohio Constitution, including the exercise of only those powers
that have vested in, and the performance of all duties imposed upon
counties and county officers by law, and whether the petition
satisfies the statutory prerequisites to place the issue on the ballot.
{¶ 44} The separation-of-powers doctrine 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). This court’s
jurisprudence limiting the authority of county boards of elections to review the
constitutionality of proposed ballot measures rested squarely on separation-of-
powers considerations. Youngstown, 144 Ohio St.3d 239, 2015-Ohio-3761, 41
N.E.3d 1229, at ¶ 11 (holding that questions of constitutional interpretation are
resolved by the courts, not the elections boards); State ex rel. Ebersole v. Powell,
141 Ohio St.3d 17, 2014-Ohio-4283, 21 N.E.3d 274, ¶ 6 (“Nor can the city council
assess the constitutionality of a proposal, because that role is reserved for the
courts”). It follows that the General Assembly’s grant of judicial-review power to
the elections boards violates the Constitution, because “[t]he 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 ex rel.
Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of
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the syllabus. For these reasons, I would hold that R.C. 3501.11(K)(2) is
unconstitutional to the limited extent that it requires elections boards to make
constitutional and legal conclusions pursuant to R.C. 3501.38(M). See Hazel, 80
Ohio St.3d at 169, 685 N.E.2d 224; Thurn, 72 Ohio St.3d at 293, 649 N.E.2d 1205.
2. Legislative vs. administrative provisions
{¶ 45} The BOE has presented an alternative theory under which it argues
that relators’ petitions are invalid: it contends that the proposed charter amendments
contain administrative provisions. For example, the BOE points to the provisions
restricting the authority of Youngstown law-enforcement officials and cooperating
agencies to surveil, detain, arrest, or otherwise impede citizens enforcing the rights
conveyed by the proposed amendments.
{¶ 46} Article II, Section 1f of the Ohio Constitution limits the initiative
and referendum powers to questions municipalities are authorized by law to control
by legislative action. “Because citizens of a municipality cannot exercise
referendum powers greater than what the Constitution affords, an administrative
action [by the municipal legislature] is beyond the scope of the referendum power.”
Ebersole, 140 Ohio St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, at ¶ 29; see also
Buckeye Community Hope Found., 82 Ohio St.3d at 545, 697 N.E.2d 181 (holding
that municipal ordinances and resolutions that qualify as administrative are not
subject to referendum). In State ex rel. Upper Arlington v. Franklin Cty. Bd. of
Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, this court
extended the legislative-administrative dichotomy to municipal initiatives. In
Upper Arlington, we held that a county board of elections abused its discretion by
denying a protest and placing an administrative initiative on the ballot, and we
issued a writ of prohibition. Id. at ¶ 25-27.
{¶ 47} The test for determining whether an action is legislative or
administrative is “ ‘whether the action taken is one enacting a law, ordinance, or
regulation, or executing a law, ordinance, or regulation already in existence.’ ”
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Ebersole at ¶ 30, quoting Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d
500 (1968), paragraph two of the syllabus. To qualify as an administrative measure,
an ordinance must execute or administer “preexisting” laws. State ex rel. N. Main
St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222,
¶ 35. If an ordinance or initiative enacts new law (as relators’ two proposed
amendments would do if passed), it is legislative, even if it contains directions as
to how to implement the law. Id. (holding that a proposed ordinance approving a
railroad grade-separation project did not become administrative by virtue of the fact
that it specified the location of the project and the amount of the village’s financial
contribution to the project); State ex rel. Citizen Action for a Livable Montgomery
v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875
N.E.2d 902, ¶ 38-39 (proposed ordinance directing city to acquire land for use as
parkland was legislative even though it prescribed how the city was to acquire the
land).
{¶ 48} In contrast to Sensible Norwood, where this court also held that the
ordinance was administrative because it would have changed the manner in which
local police and courts could enforce specific existing laws, 148 Ohio St.3d 176,
2016-Ohio-5919, 69 N.E.3d 696, at ¶ 14-18, the BOE has identified no existing
statutes that would be altered or enforced differently under the proposed charter
amendments. The Sensible Norwood problem in this case, if such a problem exists,
is not that the proposed amendments are administrative but that they arguably bar
state officials from enforcing state law within the confines of the city. Sensible
Norwood established that an ordinance preventing the enforcement of state law
exceeds the legislative authority of a municipality. Id. at ¶ 18. If one interprets the
“surveil, detain, arrest, or otherwise impede” clauses in the proposed amendments
as barring federal or state officials from enforcing their laws within the jurisdiction,
then the amendments would be improper.
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{¶ 49} However, the proposed charter language, in context, does not
purport to nullify federal and state law. The complete provision reads: “City of
Youngstown law enforcement, and cooperating agencies acting within the
jurisdiction of the City of Youngstown, shall have no lawful authority to surveil,
detain, arrest, or otherwise impede natural persons enforcing these rights.” The
parties give no attention to the meaning of the phrase “cooperating agencies.”
{¶ 50} The phrase “cooperating agencies” appears to refer to local law-
enforcement entities that enter into mutual-aid agreements. Owensby v. Cincinnati,
385 F.Supp.2d 626, 639 (S.D.Ohio 2004). Local law enforcement may enter into
these agreements with other local jurisdictions (municipal corporations, townships,
township police districts, joint police districts, or county sheriffs) for the use of
police services or equipment. R.C. 737.04. It seems unremarkable to require
cooperating law-enforcement officers to abide by local city ordinances while they
are operating within the city, pursuant to agreement. Unfortunately, if such an
agreement exists in this case, it is not in the record.
{¶ 51} Given the ambiguous scope of the “surveil, arrest, detain, or
otherwise impede” clauses, we should rule on the side of ballot access and let the
matter be resolved, if necessary, through fact-finding during postenactment
litigation. See Youngstown, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229,
at ¶ 11.
{¶ 52} Finally, the BOE objects to language in the proposed amendments
purporting to limit the ability to challenge the amendments; the BOE calls these
“administrative” provisions. The relevant words in the two amendments differ
from each other. The Youngstown Drinking Water Protection Bill of Rights
(“Water Amendment”) provides:
Any corporation, or other business entity, that violates the
rights in this Amendment shall not be deemed a “person” to the
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extent that such treatment would interfere with the rights
enumerated by this Amendment, nor shall it possess any other legal
rights, powers, privileges, immunities, or duties that would interfere
with the rights, including the power to assert state, federal or
international preemptive laws in an attempt to overturn this
Amendment, or the power to assert that the people of the City of
Youngstown lack the authority to adopt this Amendment.
While this provision may appear problematic under Sensible Norwood because it
seems to be aimed at divesting the courts of jurisdiction to hear challenges brought
by corporations, it is distinguishable from the proposed marijuana ordinances at
issue in that case, as I have discussed above. In Sensible Norwood, the proposed
ordinances purported to create felony offenses, and in doing so they clearly
exceeded the power of a municipality to make the violation of any of its ordinances
a misdemeanor. The above-quoted provision of the Water Amendment is
ambiguous, and its constitutionality would need to be determined by a court if that
provision ever became effective. We have made clear that an unconstitutional
proposal may be a proper item for referendum or initiative and that such a proposal
becomes void and unenforceable only when declared unconstitutional by a court of
competent jurisdiction. Youngstown at ¶ 11. I would accordingly reserve a ruling
on the constitutionality of this provision in the event that the provision becomes
law and is subsequently challenged in court.
{¶ 53} The other provision objected to by the BOE is found in the portion
of the People’s Bill of Rights for Fair Elections and Access to Local Government
(“Elections Amendment”) providing:
The people of Youngstown possess the right to make law
through local initiative processes. That right shall include but not
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be limited to the right to be free from interference with the exercise
of the initiative power, that there shall be no attempt to stop the
placement of an initiative proposal on the ballot based on
substantive challenges, claimed illegality or unconstitutionality, or
review of the content, intent, or surmised effect of the measure prior
to being presented to the voters and before it is enacted into law.
This right shall require that all issues duly petitioned in accordance
with law shall appear on the ballot in the same manner as is
customary for other issues, that they be presented with unbiased
summary language on the ballot and that the complete legislative
proposal be posted at each polling location.
This paragraph, and especially the second and third sentences, appears to be
addressed to the BOE and designed to curtail its ability to conduct a substantive
evaluation of proposed initiatives. Based on Youngstown and my conclusion that
R.C. 3501.11(K)(2) is unconstitutional to the limited extent that it incorporates R.C.
3501.38(M), I would hold that this language is merely a restatement of existing law,
and does not disqualify the Elections Amendment from the ballot. See Citizen
Action, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902, at ¶ 39, quoting the
relator’s brief (“a holding that an ordinance is administrative simply because it
contains language directing that Ohio law should be followed would result in the
extinction of ‘virtually all legislative actions’ ”). Alternatively, should the
Elections Amendment ever pass, it would be the role of the courts to determine
whether this language invalidates the provision.
II. CONCLUSION
{¶ 54} I would hold that pursuant to Youngstown, 144 Ohio St.3d 239,
2015-Ohio-3761, 41 N.E.3d 1229, the BOE’s role in processing initiative petitions
does not extend to evaluating the substantive ballot-worthiness of a proposal. Only
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to the limited extent that R.C. 3501.11(K)(2) incorporates R.C. 3501.38(M), I
would declare it unconstitutional. In determining that the proposed charter
amendments fall outside the scope of Youngstown’s power to enact through
initiative, the BOE, pursuant to R.C. 3501.11(K)(2), made substantive
constitutional and legal determinations that are reserved for the judiciary. In fact,
when BOE member David Betras moved the BOE to deny certification, he
expressly referenced Article XVIII, Sections 3 and 7 of the Ohio Constitution in
asserting that the proposed amendments were unconstitutional.
{¶ 55} Because relators have shown the existence of a clear legal right and
of a clear legal duty on the part of the BOE as well as the lack of an adequate
remedy at law, and because the BOE abused its discretion and erred as a matter of
law when it refused to certify relators’ petitions, this court should grant the
requested writs of mandamus.
O’CONNOR, C.J., and O’NEILL, J., concur in the foregoing opinion.
__________________
Terry J. Lodge, for relators.
Paul J. Gains, Mahoning County Prosecuting Attorney, and Sharon K.
Hackett, Linette M. Stratford, and Gina DeGenova Zawrotuk, Assistant
Prosecuting Attorneys, for respondents.
Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, in
support of respondents, for amici curiae Affiliated Construction Trades Ohio
Foundation, Ohio Chamber of Commerce, and American Petroleum Institute.
Mangano Law Offices Co., L.P.A., and Joseph J. Guarino III and Ryan K.
Hymore, in support of respondents, for amici curiae Western Reserve Building and
Construction Trades Council, Youngstown Warren Regional Chamber,
Youngstown Warren Black Caucus, Community Mobilization Coalition, and
Mahoning Trumbull AFL-CIO.
_________________________
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