Summary
involving a petition filed in the city of Beachwood
Summary of this case from State ex rel. Lange v. KingOpinion
No. 93-1575
Submitted and decided September 16, 1993 — Opinion announced October 14, 1993.
Reporter's Note: For earlier case, see (1993), 67 Ohio St.3d 1461, 619 N.E.2d 696.
IN MANDAMUS.
ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT.On March 15, 1993, the Beachwood City Council passed an ordinance rezoning a certain parcel. On March 26, 1993, two members of an organization known as the Committee to Preserve Beachwood, Inc. presented a referendum petition to Dale L. Davis, Clerk of the City Council and City Finance Director, requested a copy of the rezoning ordinance, and requested that Davis sign a certification attesting that the copy of the ordinance, which was attached to the petition, was a "true and exact" copy and had been filed with Davis on March 26, 1993. Davis signed the certification, and the members of the committee left a copy of the petition and the ordinance, as certified, with him. No certified copy of the ordinance was filed with the city auditor, William Hartstein.
Ultimately, fifty-six part-petitions containing sufficient valid signatures to compel a referendum were filed with Davis, as required by city charter. On May 11, 1993 (supplemented on May 27, 1993), Davis certified that fact to the respondent Cuyahoga County Board of Elections ("the board"). The city council then directed the board to place the referendum on the ballot at the November 2, 1993 election.
Relator Jeffrey Bogart, an elector residing in Beachwood, filed a protest with the respondent board. On July 6, 1993, the board voted to disallow the protest and placed the referendum to the ballot. On August 5, 1993, relator filed this action in mandamus to compel the respondent board to "allow Relator's Protest and to reject the Petition * * *."
The cause is now before this court upon respondent's motion for summary judgment.
Kahn, Kleinman, Yanowitz Arnson Co., L.P.A., Armond D. Arnson, Sheldon Berns and Benjamin J. Ockner, for relator.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Patrick J. Murphy and Michael P. Butler, Assistant Prosecuting Attorneys, for respondent.
R.C. 731.28 through 731.41 set forth a statutory procedure for municipal initiative and referendum. R.C. 731.32 requires, in cities, that those who propose a referendum on an ordinance must file a certified copy of the ordinance with the city auditor before circulating the referendum petition. Beachwood has a city auditor. The Committee to Preserve Beachwood did not file a certified copy of the ordinance with the auditor, but filed it instead with the clerk of council/director of finance. Hence, relator argues, there was no compliance with the statute, as required by this court's decision in State ex rel. Citizens for a Better Beachwood v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 167, 580 N.E.2d 1063.
In Citizens for a Better Beachwood, we found that Beachwood had adopted a Charter prescribing referendum procedures somewhat different from those prescribed by R.C. 731.28 through 731.41, but held that (1) R.C. 731.32 still applied to the city because it had not adopted a specific procedure which conflicted with that statute, and (2) Article I of the city charter incorporated the law of Ohio by reference, except where it conflicts with the charter.
We adhere to our decision in Citizens for a Better Beachwood. The Beachwood Charter dictates compliance with R.C. 731.32. R.C. 731.32 requires the filing of a certified copy of an ordinance with the city auditor before circulating the petition. That was not done in this case. Therefore, we allow the writ and compel respondent to allow relator's protest and reject the petition. Respondent's motion for summary judgment is, accordingly, overruled.
The parties do not argue the propriety of thus using the writ of mandamus in effect to enjoin the board of elections. We note there is precedent for such a use of the writ. See State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153.
Writ allowed.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, J., dissents.
There was substantial compliance with R.C. 731.32 in this case. R.C. 731.41 allows home-rule variations on the requirements of
R.C. 731.28 to 731.40. In Beachwood, for instance, Section 2(b), Article IV of the city charter assigns the duty to receive and validate the sufficiency of referendum petitions to the clerk of council, rather than to the city auditor as provided in R.C. 731.29. The city charter also states in Section 4, Article III that the clerk of council "shall * * * authenticate all records, documents and instruments of the Municipality on which authentication is properly required by law." R.C. 731.32 requires authentication of the certified copy of the referendum petition.
There is nothing magical in R.C. 731.28 to 731.40 about the auditor's position that would not allow a municipality to assign that role to some other official through a home-rule variation. The auditor does not have a unique ability to breathe life into the referendum process, but rather has just been designated by statute as the person to oversee the process. Beachwood has made it clear in its charter that the clerk of council is to oversee the referendum process in that city. Since Beachwood has the right to make such a home-rule variation pursuant to R.C. 731.41, the clerk of council was the proper person with whom to file the certified copy of the referendum petition.
The majority decision prevents popular sovereignty on a referendum for extremely technical and insufficient reasons. I would deny the writ and would grant respondent's motion for summary judgment. The election should be held.