DocketNumber: No. 06AP-963.
Citation Numbers: 2006 Ohio 5319
Judges: FRENCH, J.
Filed Date: 10/11/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} In March 2006, the General Assembly passed, and the Governor signed, S.B. 7, which made changes to workers' compensation laws in Ohio. On June 29, 2006, one day before the effective date of S.B. 7, appellees filed a referendum petition with the office of the Secretary, seeking to place a referendum against the enactment of a portion of S.B. 7 before Ohio voters on the November 7, 2006 ballot.
{¶ 3} The Secretary forwarded the part-petitions of the referendum petition to the county boards of elections to verify that the signatures contained in the part-petitions were valid. The reports of the boards indicated that some of the signatures submitted were not valid.
{¶ 4} Appellees filed protest actions against the boards' actions in 11 counties. Before those protest actions were resolved, on August 25, 2006, appellant Lobb, on behalf of the Secretary, issued to appellees a letter certifying "that petitioners submitted 120,778 valid signatures on behalf of the proposed referendum and valid signatures from 20 of the 88 counties have met or exceeded 3% of the total number of votes cast for governor in the respective counties at the last gubernatorial election." The letter listed the number of valid signatures for each of the remaining 68 counties and the number of signatures by which the part-petitions were deficient in each of those counties. The letter then concluded: "[Appellees] will need to submit an additional 72,962 valid signatures and meet the 3% requirement in an additional 24 counties. Therefore, in accordance with R.C.
{¶ 5} On August 29, 2006, appellees filed a complaint and motion for temporary restraining order ("TRO") and preliminary injunction in the trial court. In essence, appellees argued that appellants should not have issued the August 25, 2006 notice-of-insufficiency letter until after all the protests had been resolved. They further argued that, since appellants issued the notice-of-insufficiency letter prematurely, the letter was invalid, and the ten-day period in which the committee could submit additional signatures and correct the inefficiency had not yet begun to run. The court denied the motion for TRO and held a preliminary injunction hearing on September 14, 2006.
{¶ 6} On September 15, 2006, before the trial court had issued a decision on the motion for preliminary injunction, appellees filed supplemental signatures. On September 18, 2006, appellants notified the court of appellees' supplemental filing. Later that same day, the court issued its decision, which granted appellees' motion for preliminary injunction. On September 26, 2006, the court issued a preliminary injunction order. The order provided that the August 25, 2006 notice-of-insufficiency letter "is hereby stayed pursuant to Civ.R. 65(B) pending final determination of this action or until further order of the Court." The order also stated:
* * * This Order shall not prevent [appellants] from certifying a sufficient number of signatures for the referendum question to be placed on the November 7, 2006 general election ballot in the event that such is determined by [appellants] from the supplemental signatures filed by the petition committee on September 15, 2006. * * *
{¶ 7} Appellants filed a timely appeal and raise a single assignment of error:
The trial court erred in issuing its September 18, 2006 "Decision and Entry Sustaining Plaintiffs' Motion for Preliminary Injunction Hearing, Filed August 29, 2006" and its September 26, 2006 "Preliminary Injunction Order."
{¶ 8} As an initial matter, we consider appellants' assertion that the trial court's September 26, 2006 preliminary injunction order is final and appealable. Appellees do not argue otherwise, and we agree that the order is final and appealable.
{¶ 9} R.C.
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶ 10} We agree with appellants that the trial court's preliminary injunction order meets the requirements of R.C.
{¶ 11} The Ohio Constitution provides that the petition and signatures shall be presumed to be sufficient unless proven otherwise not later than 40 days before the election. See Section
{¶ 12} Ohio law further provides that a vote rejecting a law submitted to voters pursuant to a referendum petition may not thereafter be invalidated "on account of the insufficiency of the petitions by which such submission of the same was procured[.]" Section
{¶ 13} Given these circumstances, we conclude that, if appellants were denied an immediate appeal from the trial court's order, appellants would be denied meaningful relief altogether. Therefore, the requirements of R.C.
{¶ 14} The standards by which a trial court must judge a motion for preliminary injunction are well-established. A moving party is entitled to injunctive relief if that party establishes: (1) a substantial likelihood of prevailing on the merits; (2) irreparable injury in the absence of injunctive relief; (3) no unjustifiable harm to third parties; and (4) that the injunction would serve the public interest. Vanguard Transp. Sys., Inc. v.Edwards Transfer Storage Co., Gen. Commodities Div. (1996),
{¶ 15} The standard of review on appeal from the granting of injunctive relief is whether the trial court abused its discretion. Prairie Twp. Bd. of Trustees v. Ross, Franklin App. No. 03AP-509,
{¶ 16} With some exceptions not relevant here, the Ohio Constitution reserves for the people of the state of Ohio the power to adopt or reject, by vote at a general election, any law or section of law proposed by the General Assembly. Sections
{¶ 17} The referendum petition process begins when a committee of three to five people submits a written petition signed by 1,000 electors to the secretary of state with the full text and summary of the law to be referred to the voters. Once the secretary verifies the signatures and the attorney general verifies the accuracy of the summary, the committee drafts and circulates the petition or part-petitions for signature.
{¶ 18} The constitution provides that, in order to be submitted to the voters, the total number of signatures on the referendum petition or part-petitions must equal at least six percent of the total votes cast for the office of governor at the last gubernatorial election. In addition, the signatures must be obtained from at least 44 of the 88 counties in Ohio and, from each of these 44 counties, there must be signatures equal to at least three percent of the total gubernatorial votes cast in that county. As applied here, appellees were required to submit a petition or part-petitions containing a total number of at least 193,740 valid signatures, which represents six percent of the total votes cast in the 2002 gubernatorial election, and those signatures must have been obtained from at least 44 counties and, for each of those counties, must have represented three percent of the total gubernatorial vote cast.
{¶ 19} As for the time for filing a referendum petition, the committee must file a petition with the secretary of state within 90 days after the governor has filed with the secretary the law or section of law to be referred. Here, appellees filed the petition or part-petitions on June 29, 2006, one day prior to the 90-day deadline.
{¶ 20} Pursuant to R.C.
{¶ 21} Appellants' August 25, 2006 notice-of-insufficiency letter reflects the results of the boards' reports. As noted, appellees submitted 120,778 valid signatures, and valid signatures from 20 counties met or exceeded the three percent requirement. Thus, based on the boards' reports, appellees' part-petitions were deficient by 72,962 total votes and short by 24 counties having signatures representing three percent of the last gubernatorial vote.
{¶ 22} As permitted by statute, appellees protested some of the boards' findings. R.C.
* * * The action shall be brought within three days after the protest is filed, and it shall be heard forthwith by a judge of that court, whose decision shall be certified to the board. The signatures that are adjudged sufficient or the part-petitions that are adjudged properly verified shall be included with the others by the board, and those found insufficient and all those part-petitions that are adjudged not properly verified shall not be included.
The properly verified part-petitions, together with the report of the board, shall be returned to the secretary of state not less than fifty days before the election * * *. The secretary of state shall notify the chairperson of the committee in charge of the circulation as to the sufficiency or insufficiency of the petition and the extent of the insufficiency.
If the petition is found insufficient because of an insufficient number of valid signatures, the committee shall be allowed ten additional days after the notification by the secretary of state for the filing of additional signatures to the petition.
{¶ 23} The Ohio Constitution does not explicitly provide for a protest process. It does, however, state: "The petition and signatures upon such petitions shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise proved and in such event ten additional days shall be allowed for the filing of additional signatures to such petition." Section 1g, Article II.
{¶ 24} Here, appellees filed protests in 11 counties and, pursuant to R.C.
{¶ 25} Before this court, appellants argue that the secretary need not delay issuance of a ten-day letter until after all protest actions have been resolved. In support, appellants direct us to the Supreme Court's recent opinion in State ex rel. Evansv. Blackwell, ___ Ohio St.3d ___,
{¶ 26} The protestor, Jacob Evans, filed a complaint in this court for an emergency writ of prohibition or, in the alternative, for a writ of mandamus against the secretary and the legislative clerks. Evans argued that, by not waiting to transmit the proposed law to the General Assembly until after the protests had been resolved and the boards of elections made any necessary supplemental reports, the secretary violated Section
{¶ 27} After disposing of Evans' claim in mandamus and a claim in prohibition he had not raised below, the court turned to Evans' "primary prohibition claim," in which he asserted that this court erred in denying a writ of prohibition "because the Secretary of State was required to wait for the completion of the common pleas court protest proceedings before he could transmit the initiative petition to the General Assembly." Id. at ¶ 26. The court reviewed the applicable constitutional and statutory provisions, including the language in Section 1g, Article II, providing that "[t]he petition and signatures upon such petitions shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise proved and in such event ten additional days shall be allowed for the filing of additional signatures to such petition." R.C.
{¶ 28} Turning to its analysis of these provisions, the court found that Evans' claim — that the secretary lacked authority to transmit the petition to the general assembly before the protests were resolved — "lacks merit." Id. at ¶ 32. Instead, the court found:
* * * Section
Id.
{¶ 29} "The Secretary of State's interpretation of the pertinent constitutional and statutory provisions[,]" the court found, "is not unreasonable. We must therefore defer to the Secretary's reasonable interpretation." Id. at ¶ 34.
{¶ 30} As applied here, appellants argue, Evans compels a finding in this case that the Secretary's interpretation of the pertinent constitutional and statutory provisions is not unreasonable. In other words, appellants' issuance of the August 25, 2006 notice-of-insufficiency letter, without first waiting for the pending protests to be resolved, was reasonable.
{¶ 31} Appellees argue, however, that Evans is not controlling here. Evans, appellees note, dealt with the power of the secretary of state to transmit a law proposed by initiative petition to the general assembly under Section
{¶ 32} Section 1c, Article II, designates the referendum power as the "second aforestated power reserved by the people[.]" Section 1c provides, in pertinent part:
* * * When a petition, signed by six per centum of the electors of the state and verified as herein provided, shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such law, section of such law or any item in such law appropriating money be submitted to the electors of the state for their approval or rejection, the secretary of state shall submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election * * *.
{¶ 33} In short, Section 1c of Article II provides that the secretary of state "shall submit to the electors of the state for their approval or rejection such law, section or item" once a petition, signed by six percent of the electors of the state "and verified as herein provided" has been filed. As the court found in Evans, Section 1b of Article II similarly provides that the secretary "shall transmit" to the general assembly a law proposed by initiative petition once a petition, signed by three percent of the electors "and verified as herein provided" has been filed. And, we note that Section 1a of Article II also provides that the secretary "shall submit for the approval or rejection of the electors" a proposed constitutional amendment once a petition, signed by ten percent of the electors of the state and "verified as herein provided," is filed. Thus, Article
{¶ 34} In Cappelletti v. Celebrezze, Jr. (1979),
{¶ 35} In short, as used throughout Article II, the phrase "verified as herein provided" refers to the secretary's initial verification, as well as the boards' initial reports, whether used in Section 1a, 1b or 1c of Article II. This language is not unique to Section 1b, and we reject appellees' attempt to distinguish Section 1c, and Evans, on that basis.
{¶ 36} We turn now to Section 1g of Article II, which applies to both initiative petitions under Section 1b and referendum petitions under Section 1c. As noted, Section 1g provides, in pertinent part: "The petition and signatures upon such petitions shall be presumed to be in all respects sufficient, unless not later than forty days before the election, it shall be otherwise proved and in such event ten additional days shall be allowed for the filing of additional signatures to such petition." According to appellees, this language, along with R.C.
{¶ 37} We return to Cappelletti, wherein the Supreme Court considered the connection between the boards' verification process and the "presumed sufficient" language in Section 1g of Article II. The court found: "The fact that such inquiry [by the boards of elections] is contemplated by the language of the constitutionally provided presumption is implicit in its terms, for they provide that the presumption is subject to disproof up until 40 days before an election." Cappelletti at 397. And, most importantly for our purposes here, the court stated: "It is evident that such disproof might be accomplished in various ways, but it is accomplished most effectively by the boards of elections, which have control of the election and registration records and poll books of those whose addresses have been given in connection with the signing, comparing the purported signatures with those enrolled in these records." Id. Thus, the board reviews alone are sufficient to disprove the sufficiency of a petition and signatures under Section 1g.
{¶ 38} We acknowledge, as appellees argue, that R.C.
{¶ 39} Nevertheless, we conclude that the Supreme Court has interpreted R.C.
{¶ 40} Moreover, as the Cappelletti court found, the boards' review itself is a method of proving or disproving the sufficiency of the signatures. While the petition and signatures may have been presumed sufficient at the time of their filing, the boards' reports disproved their sufficiency, thus triggering notice from the Secretary of the ten-day timeframe for filing additional signatures under Section 1g of Article II.
{¶ 41} Finally, we address appellees' argument that appellants' August 25, 2006 letter was invalid because it did not indicate "the extent of the insufficiency," as R.C.
{¶ 42} In the end, based on the plain language of Article II and the Supreme Court's interpretation of Article II inCappelletti, we find that the reports of the boards of elections "otherwise proved" that the referendum petition at issue here was insufficient, thus triggering the secretary's letter, which gives notice of the ten-day timeframe for filing supplemental signatures under Section 1g of Article II. In order to read R.C.
{¶ 43} Having sustained appellants' assignment of error, we reverse the September 18, 2006 decision of the trial court, and we lift the stay imposed on appellants' August 25, 2006 letter by the trial court's September 26, 2006 order.
Judgment reversed.
Brown and Sadler, JJ., concur.