State ex rel. Pennington v. Bivens (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Pennington v. Bivens, Slip Opinion No. 2021-Ohio-3134.]
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. 2021-OHIO-3134[THE STATE EX REL.] PENNINGTON ET AL. v. BIVENS, CITY ATTY., ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Pennington v. Bivens, Slip Opinion No.
2021-Ohio-3134.]
Elections—Mandamus—Writ of mandamus sought to compel city attorney to certify
sufficiency of petitioners’ zoning-amendment referendum petition—
Procedures for circulating referendum or initiative petition set forth in R.C.
731.28 through 731.41 do not apply to municipality that has adopted its
own charter containing an initiative and referendum provision—Because
city had adopted a charter containing an initiative and referendum
provision, petitioners were not required to comply with R.C. 731.32’s
requirement to submit ordinance to city auditor before circulating
referendum petition—City attorney abused his discretion in rejecting
petition on the ground that petitioners failed to comply with R.C. 731.32—
Writ granted in part.
(No. 2021-1030—Submitted August 31, 2021—Decided September 13, 2021.)
SUPREME COURT OF OHIO
IN MANDAMUS.
________________
KENNEDY, J.
{¶ 1} In this expedited election case, relators, Lana Pennington, Holly
Pennington, Cynthia McIntire, Lisa Cotterman, and Anna Miller, the five members
of a petition committee (collectively, “petitioners”), seek a writ of mandamus
ordering respondent Whitehall City Attorney Michael T. Bivens or respondent
Whitehall City Council to certify the sufficiency of a referendum petition for the
rejection or approval of a zoning ordinance in the city of Whitehall. The petitioners
also seek to compel the city council to submit the petition to Whitehall’s electors at
the November 2, 2021 general election.
{¶ 2} R.C. 731.41 states that the procedures for circulating a referendum or
initiative petition provided in R.C. 731.28 through 731.41 do not apply to a
municipality, such as the city of Whitehall, that has “adopt[ed] its own charter
containing an initiative and referendum provision for its own ordinances and other
legislative measures.” Therefore, Bivens abused his discretion in rejecting a
referendum petition on the ground that the petitioners failed to comply with R.C.
731.32’s requirement to submit a certified copy of the zoning ordinance to the city
auditor before circulating their petition. We also decline to apply the equitable
defense of laches. There is no equity in denying the preeminent constitutional right
of referendum when respondents have not asserted any actual, material prejudice
from the delay.
{¶ 3} For these reasons, we grant a writ of mandamus to compel Bivens to
certify the sufficiency of the petition to the clerk of the Whitehall City Council
forthwith so that the council may refer the zoning amendment to the electors at the
November 2, 2021 general election. However, we deny petitioners’ request for
attorney fees.
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January Term, 2021
Facts and Procedural History
{¶ 4} On June 16, 2021, Whitehall’s mayor signed an ordinance changing
the zoning classification of several parcels from “R-3 Residential District” and
“General Commerce District” to “A-2 Apartment District.” On June 24, the
petitioners filed an uncirculated referendum petition along with a certified copy of
the ordinance with Bivens, the city attorney. However, the certified copy of the
ordinance, which the petitioners had obtained from the clerk of the city council, did
not include the ordinance’s exhibits.
{¶ 5} On July 1, after gathering signatures, the petitioners filed the petition
with Bivens. He then delivered the petition to the Franklin County Board of
Elections, which certified that the petition contained a sufficient number of valid
signatures.
{¶ 6} On July 10, Bivens informed the petitioners that the petition was
insufficient because it did not contain the full ordinance, which he said was required
under section 15(a) of the Whitehall City Charter. See Whitehall City Charter,
Section 15(a) (requiring that initiative petitions include “the proposed ordinance or
resolution in full”); Whitehall City Charter, Section 16(b) (providing that
“referendum petitions shall be prepared and filed in the manner and form prescribed
* * * for an initiative petition for an ordinance or resolution”). He also told the
petitioners that they had “failed to file a full-certified copy of the ordinance prior
to circulation as required by Ohio Revised Code 731.32.” That statute provides in
part that “[w]hoever * * * files a referendum petition against any ordinance or
measure shall, before circulating such petition, file a certified copy of the proposed
ordinance or measure with the city auditor.” (Emphasis added.) R.C. 731.32.
Bivens notified the petitioners that the city charter provides for a limited right to
file an amended petition within ten days. See Whitehall City Charter, Sections
15(d) and 16(b).
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SUPREME COURT OF OHIO
{¶ 7} On July 15, the petitioners filed a copy of an uncirculated amended
petition along with a certified copy of the ordinance (this time including its exhibits)
with Bivens, and on July 19 they filed the circulated amended petition with him.
Bivens sent the amended petition to the board of elections, which found that it
contained a sufficient number of valid signatures.
{¶ 8} Nine days later, on July 28, Bivens notified the petitioners that the
amended petition was insufficient because they had not complied with R.C. 731.32.
On August 11, petitioner Lana Pennington e-mailed Bivens asking him to clarify
his basis for rejecting the petition. Bivens replied, explaining that in his July 10
and July 28 letters to the petitioners, he had “referenced and noticed the
insufficiency of the referendum petitions due to the committee’s failure to file pre-
circulated certified copies pursuant to ORC 731.32. This statute states in relevant
part that the pre-circulated certified copies of the referendum petitions must be filed
with the Auditor.”
{¶ 9} On August 18, the petitioners filed this original action seeking to
compel Bivens or the city council to certify the sufficiency of the petition and to
compel the city council to submit the measure to the electors at the November 2,
2021 general election. The petitioners maintain that they were not required to file
a certified copy of the ordinance with the city auditor before circulating the petition,
because section 14 of the city charter provides that “[a]ll petitions required in the
initiative or referendum of ordinances and resolutions shall be filed with the City
Attorney.”
Law and Analysis
Mandamus
{¶ 10} To be entitled to a writ of mandamus, the petitioners must establish a
clear legal right to the requested relief, a clear legal duty on the part of a respondent
to grant the relief, and the lack of an adequate remedy in the ordinary course of the
law. See State ex rel. Commt. for Charter Amendment Petition v. Maple Hts., 140
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January Term, 2021
Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 17. Respondents do not dispute
that the proximity of the November election precludes an adequate remedy at law.
See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462,
2009-Ohio-3657, 912 N.E.2d 573, ¶ 18. To prevail, the petitioners must show that
Bivens abused his discretion in finding that the petition was insufficient. State ex
rel. Sinay v. Sodders, 80 Ohio St.3d 224, 232, 685 N.E.2d 754 (1997).
{¶ 11} Article II, Section 1f of the Ohio Constitution states, “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; such powers shall be exercised in the manner now or
hereafter provided by law.” We have described Article II, Section 1f as “a delegation
of power to the Legislature to provide how the initiative and referendum powers that
were reserved to the people of each municipality may be applied.” Youngstown v.
Craver, 127 Ohio St. 195, 202-203, 187 N.E. 715 (1933). In addition, we have
recognized that “charter ‘law’ under the ‘homerule’ provisions of the Constitution”
may also provide for the exercise of the rights to initiative and referendum. State ex
rel. Bramblette v. Yordy, 24 Ohio St.2d 147, 149, 265 N.E.2d 273 (1970). In the
event of a conflict with state law, the charter prevails on matters of local self-
government, including the conduct of local elections. Article XVIII, Section 3, Ohio
Constitution; State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d
17, 19, 577 N.E.2d 645 (1991).
{¶ 12} The General Assembly has provided a default procedure for
exercising the rights of initiative and referendum in enacting R.C. 731.28 et seq.
These statutes include R.C. 731.32, which states in part that “[w]hoever * * * files a
referendum petition against any ordinance or measure shall, before circulating such
petition, file a certified copy of the proposed ordinance or measure with the city
auditor or the village clerk.” But the General Assembly also provided that “Sections
731.28 to 731.41, inclusive, of the Revised Code do not apply to any municipal
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SUPREME COURT OF OHIO
corporation which adopts its own charter containing an initiative and referendum
provision for its own ordinances and other legislative measures.” (Emphasis added.)
R.C. 731.41.
{¶ 13} Whitehall’s city charter contains an initiative and referendum
provision. See Whitehall City Charter, Section 15 (initiative petitions) and Section
16 (referendum petitions). Therefore, by the express terms of R.C. 731.41, the
precirculation filing requirement imposed by R.C. 731.32 does not apply to the
referendum petition submitted in this case.
{¶ 14} Respondents maintain that the Whitehall charter incorporates R.C.
731.32 by reference through section 79 of the charter, which provides that “[a]ll
general laws of the State applicable to municipal corporations, now or hereafter
enacted and which are not in conflict with the provisions of this Charter, or with
ordinances or resolutions hereafter enacted by City Council, shall be applicable to
this City.” They point out that “the Whitehall City Charter is silent with respect to
precirculation requirements,” and “[i]n interpreting municipal charters that are
similarly silent with respect to precirculation requirements though also contain
provisions that incorporate all non-conflicting state laws, this Court has repeatedly
held that R.C. 731.32 applies to such municipalities.”
{¶ 15} We acknowledge that we have said that R.C. 731.32 does not conflict
with a municipality’s initiative and referendum provision when the charter
incorporates general law by reference and does not impose (i.e., is silent regarding)
any precirculation requirement. E.g., State ex rel. Columbus Coalition for
Responsive Govt. v. Blevins, 140 Ohio St.3d 294, 2014-Ohio-3745, 17 N.E.3d 578,
¶ 7; State ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485,
955 N.E.2d 363, ¶ 13; State ex rel. Bogart v. Cuyahoga Cty. Bd. of Elections, 67 Ohio
St.3d 554, 555, 621 N.E.2d 389 (1993); State ex rel. Citizens for a Better Beachwood
v. Cuyahoga Cty. Bd. of Elections, 62 Ohio St.3d 167, 168-170, 580 N.E.2d 1063(1991).
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January Term, 2021
{¶ 16} This line of cases sprung from our decision in State ex rel. Nimon v.
Springdale, 6 Ohio St.2d 1, 215 N.E.2d 592 (1966). In that case, the municipal
charter had three provisions that departed from the statutory procedures provided by
R.C. 731.28 et seq., and it also provided that “ ‘all other matters relating to the
question of the exercise of the power of referendum shall be regulated by the
provision of the Revised Code of Ohio relating to referendum petitions,’ ” Nimon at
8. This charter language therefore specifically incorporated all the requirements set
forth in R.C. 731.28 et seq. for circulating a referendum petition except where the
charter expressly stated otherwise. That is, the Springdale Village Charter provided
that any gap left in the charter—the “silence”—would be filled by the default
statutory procedures. In this way, it had overridden R.C. 731.41 by expressly stating
that statutes like R.C. 731.32 would be incorporated into the charter. Nimon at 8.
{¶ 17} Based on this language, we held:
Where the charter of a municipal corporation provides for
certain features of the initiative and referendum differing from the
statutory provisions with relation thereto, and provides further that
‘all other matters relating to the question of the exercise of the power
of referendum shall be regulated by the provisions of the Revised
Code of Ohio relating to referendum petitions,’ but is silent with
respect to language to be contained on a referendum petition or with
respect to filing such petition with a village official prior to its
circulation, such matters are controlled by Sections 731.32 and
731.33 of the Revised Code, and Section 731.41, Revised Code, is
inapplicable.
Id. at paragraph five of the syllabus.
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SUPREME COURT OF OHIO
{¶ 18} We subsequently applied this holding to charters containing different
language that did not expressly override R.C. 731.41. In Citizens for a Better
Beachwood, the city charter stated that “ ‘[t]he powers of this Municipality may also
be exercised, except as a contrary intent appears in this Charter or in the enactments
of the Council conformable hereto, in such manner as may now or hereafter be
provided by the general law of Ohio.’ ” 62 Ohio St.3d at 168, 580 N.E.2d 1063.
Although this charter language was unlike the initiative and referendum provision in
Nimon, which had specifically incorporated the default statutory referendum
procedures that did not conflict with the charter’s express provisions, we nonetheless
applied the rule from Nimon and held that when the charter is silent on any
precirculation requirements, nothing in the charter conflicts with R.C. 731.32 and the
statute controls, Citizens for a Better Beachwood at 170.
{¶ 19} Since Citizens for a Better Beachwood was decided, we have
continued to hold that notwithstanding R.C. 731.41, “ ‘[t]he statutory procedure
governing municipal initiative and referendum in R.C. 731.28 through 731.41’ does
apply to ‘municipalities where the charter incorporates general law by reference,
except where the statutory procedure [expressly] conflicts with other charter
provisions.’ ” (First brackets and emphasis sic.) State ex rel. Harris v. Rubino, 155
Ohio St.3d 123, 2018-Ohio-3609, 119 N.E.3d 1238, ¶ 16, quoting State ex rel.
Ditmars v. McSweeney, 94 Ohio St.3d 472, 477, 764 N.E.2d 971 (2002) (lead
opinion).
{¶ 20} However, these holdings conflict with the plain language of R.C.
731.41. When a municipality has adopted a charter form of government that includes
an initiative and referendum provision, the default statutory provisions enacted in
R.C. 731.28 et seq. do not apply. R.C. 731.41. Therefore, a charter provision that
adopts all general laws applicable to municipalities that are not in conflict with the
charter does not incorporate by reference a statute that R.C. 731.41 expressly says
does not apply to the municipality. Here, section 79 of the Whitehall City Charter
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January Term, 2021
incorporates only those general laws that are applicable to the municipality. Citizens
for a Better Beachwood and its progeny do not provide the controlling rule of
decision.
{¶ 21} The Whitehall City Charter also incorporates only those general laws
that do not conflict with the charter’s provisions. The test for determining whether
state and local laws conflict is “ ‘whether the ordinance permits or licenses that which
the statute forbids * * *, and vice versa.’ ” (Ellipsis sic.) Ohioans for Concealed
Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 896 N.E.2d 967, ¶ 26,
quoting Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923), paragraph two of
the syllabus. As respondents acknowledge, R.C. 731.32 has a requirement to file the
ordinance to be referred to the city auditor before circulating any petitions, while the
charter’s initiative and referendum provisions do not. See R.C. 731.32; Whitehall
City Charter, Sections 15 and 16(b). Put differently, the charter permits a person
seeking to refer local legislation to the voters to collect signatures without first
submitting the ordinance to the city auditor. The statute, on the other hand, forbids
circulating the same petition without first submitting it to the auditor. Because the
charter allows that which the statute prohibits, they conflict, and the charter controls.
{¶ 22} The language of the Whitehall City Charter leaves no room for statutes
to overlay additional procedures on top of those adopted by the voters of Whitehall.
Section 14 of the charter states that “ordinances and resolutions adopted by Council
shall be subject to referendum to the extent and in the manner provided in the
Charter.” (Emphasis added.) This language makes the default procedures
established in R.C. 731.28 through 731.41 inapplicable to the city of Whitehall,
because the charter—and the charter only—provides the manner for circulating
referendum petitions. The charter does not impose any requirement to submit to the
city auditor the ordinance that the petitioner seeks to refer to the people. Rather, the
process in the charter provides for referendum petitions to be filed with the city
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attorney after they have been circulated. See Whitehall City Charter, Sections 15(a)
through (c) and 16(b).
{¶ 23} Bivens therefore abused his discretion in determining that the
petitioners’ referendum petition was insufficient because they had not complied with
R.C. 731.32.
Laches
{¶ 24} Respondents argue that we should deny the writ based on the doctrine
of laches, criticizing the petitioners’ 21-day delay in bringing this mandamus action.
Laches may bar relief in an election-related matter if the party seeking relief has failed
to act with the “ ‘utmost diligence.’ ” State ex rel. Monroe v. Mahoning Cty. Bd. of
Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d 524, ¶ 30, quoting State
ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922,
778 N.E.2d 37, ¶ 7.
{¶ 25} The elements of a laches defense are “(1) unreasonable delay or lapse
of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge,
actual or constructive, of the injury or wrong, and (4) prejudice to the other party.”
State ex rel. Carrier v. Hilliard City Council, 144 Ohio St.3d 592, 2016-Ohio-155,
45 N.E.3d 1006, ¶ 8.
{¶ 26} “[A] party asserting a laches defense must demonstrate that it has been
prejudiced by the other party’s delay.” State ex rel. Davis v. Summit Cty. Bd. of
Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 10. And the
prejudice must be material before laches will bar relief. State ex rel. Rife v. Franklin
Cty. Bd. of Elections, 70 Ohio St.3d 632, 635, 640 N.E.2d 522 (1994); see also Smith
v. Smith, 168 Ohio St. 447, 455, 156 N.E.2d 113 (1959) (“in order to successfully
prosecute a claim of laches, the person asserting the claim must show that he has been
materially prejudiced by the delay of the adverse party in asserting his rights”).
{¶ 27} The sole assertion of prejudice made in this case is that petitioners’
“unreasonable delay not only caused this matter to become an expedited election
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January Term, 2021
matter under S.Ct.Prac.R. 12.08, but it also resulted in the Court having to issue a
separate scheduling order requiring Respondents to file their Answer even earlier
than the date contemplated by the Court’s default expedited briefing schedule.”
(Emphasis sic.)
{¶ 28} However, a laches defense “rarely prevails in election cases.” State
ex rel. Duclos v. Hamilton Cty. Bd. of Elections, 145 Ohio St.3d 254, 2016-Ohio-
367, 48 N.E.3d 543, ¶ 8. “[C]ases in which laches is dispositive generally involve
prejudice to the respondents in their statutory obligation to absentee voters to have
absentee ballots printed and ready for use.” State ex rel. Steele v. Morrissey, 103
Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 14. This case, however, has
been fully briefed well in advance of the deadline for preparing absentee ballots as
required by the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C.
20302(a). Pursuant to R.C. 3511.04(B), that deadline is 45 days before the general
election, which in this case is September 17, 2021. Accordingly, because there has
been time to decide this case on the merits without impeding the Franklin County
Board of Elections in its duty to prepare and mail absentee ballots, the purpose of
S.Ct.Prac.R. 12.08 “to give the Supreme Court adequate time for full consideration
of the case” has been satisfied, notwithstanding any delay in the filing of the action.
{¶ 29} Respondents do not provide any concrete details as to how their
preparation and defense of this case have been materially affected. Importantly, this
case presents relatively straightforward issues regarding whether the petition is
sufficient and valid. None of these issues has required extensive discovery to defend,
and there is no indication that respondents were prevented from thoroughly
presenting the evidence, authority, and argument supporting their position in the time
frame allowed. And although respondents complain of the shorter time frame
imposed by our scheduling order, they were able to file their answer three days early.
{¶ 30} Instead, respondents rely on Citizens for Responsible Green Govt. v.
Green, 155 Ohio St.3d 28, 2018-Ohio-3489, 118 N.E.3d 236, ¶ 25, for the
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proposition that unreasonable delay in filing a mandamus action that causes a case to
be expedited under S.Ct.Prac.R. 12.08 is presumptively prejudicial. However, four
justices declined to join that per curiam opinion; therefore, that case is not binding
on this court. See Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,
2012-Ohio-5017, 979 N.E.2d 1214, ¶ 29.
{¶ 31} Nonetheless, we have sometimes indicated that the element of
prejudice may be satisfied when the delay causes the case to become an expedited
election case pursuant to S.Ct.Prac.R. 12.08, which restricts the time a respondent
has to prepare and defend the case. E.g., State ex rel. Syx v. Stow City Council, 161
Ohio St.3d 201, 2020-Ohio-4393, 161 N.E.3d 639, ¶ 14; Duclos, 145 Ohio St.3d 254,
2016-Ohio-367, 48 N.E.3d 543, at ¶ 11; State ex rel. Coughlin v. Summit Cty. Bd. of
Elections, 136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 11; State ex rel.
Chillicothe v. Ross Cty. Bd. of Elections, 123 Ohio St.3d 439, 2009-Ohio-5523, 917
N.E.2d 263, ¶ 17; State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-
1374, 926 N.E.2d 617, ¶ 19; State ex rel. Willke v. Taft, 107 Ohio St.3d 1, 2005-Ohio-
5303, 836 N.E.2d 536, ¶ 18. But in none of those cases did we conclude that laches
barred relief based solely on a presumption that the procedural burdens imposed by
expedited briefing were prejudicial. In Syx, the relators delayed filing until “so close
to the [federal] statutory deadlines for finalizing ballots” that it transformed an
expedited elections case into an emergency. Id. at ¶ 15. Yet even then, we still
proceeded to address the merits of the action, id. at ¶ 9, 18-28, and therefore our
discussion of laches was ultimately unnecessary in deciding to deny the writ.
Moreover, the majority in Syx inadvertently cited the language in Citizens for
Responsible Green Govt. referring to a presumption of prejudice as a holding of the
court, Syx at ¶ 14, when it was not—as stated, four justices did not join the opinion
in Citizens for Responsible Green Govt. In the other cases, the deadline for preparing
ballots had already passed or the laches defense did not apply, so any recognition of
a presumption of prejudice was dicta only. In short, these cases do not show that a
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writ should be denied in an election case on the sole basis of a presumption that the
delay caused the action to become expedited, and we decline to do so today. There
is no equity in denying the preeminent constitutional right of referendum to the
people of Whitehall when the respondents have not shown actual, material
prejudice from any delay.
Attorney Fees
{¶ 32} The petitioners also seek attorney fees in their prayer for relief. “[T]he
general rule is that absent a statute allowing attorney fees as costs, the prevailing
party is not entitled to an award of attorney fees unless the party against whom the
fees are taxed acted in bad faith.” State ex rel. Maloney v. Sherlock, 100 Ohio St.3d
77, 2003-Ohio-5058, 796 N.E.2d 897, ¶ 55. The petitioners have not established bad
faith. They instead suggest that they are entitled to fees as a successful party in a
taxpayer action under R.C. 733.59 and 733.61.
{¶ 33} R.C. 733.59 provides:
If the village solicitor or city director of law fails, upon the
written request of any taxpayer of the municipal corporation, to make
any application provided for in sections 733.56 to 733.58 of the
Revised Code, the taxpayer may institute suit in his own name, on
behalf of the municipal corporation. Any taxpayer of any municipal
corporation in which there is no village solicitor or city director of
law may bring such suit on behalf of the municipal corporation. No
such suit or proceeding shall be entertained by any court until the
taxpayer gives security for the cost of the proceeding.
{¶ 34} R.C. 733.61 allows a court, in its discretion, to award reasonable
attorney fees to a successful taxpayer. State ex rel. Commt. for the Charter
Amendment Petition v. Avon, 81 Ohio St.3d 590, 595, 693 N.E.2d 205 (1998).
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{¶ 35} Generally, when this court has awarded attorney fees under R.C.
733.61, it was because the respondent’s actions were not reasonably supported by
law. See State ex rel. Commt. for the Charter Amendment, City Trash Collection v.
Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 46; Avon at 595-
596. However, our precedent, including Columbus Coalition for Responsive Govt.
and Citizens for a Better Beachwood, lent support to Bivens’s position that the
petitions were not sufficient because the petitioners failed to comply with R.C.
731.32’s requirement to file the certified ordinance with the city auditor before
circulating the petition. We therefore deny the request for attorney fees.
Conclusion
{¶ 36} We grant a writ of mandamus to compel Bivens to certify forthwith
the sufficiency of the petition to the clerk of the city council so that council may
refer the zoning amendment to the electors at the November 2, 2021 general
election.
Writ granted in part.
FISCHER, DEWINE, and STEWART, JJ., concur.
O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur in judgment
only.
_________________
Shane W. Ewald, L.L.C., and Shane W. Ewald; and The Law Office of
Tricia A. Sprankle and Tricia A. Sprankle, for relators.
McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, and
Derek S. Clinger, for respondents.
_________________
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