Morris v. City Council

641 N.E.2d 1075, 71 Ohio St. 3d 52, 1994 Ohio LEXIS 2324
CourtOhio Supreme Court
DecidedOctober 13, 1994
DocketNo. 94-1996
StatusPublished
Cited by53 cases

This text of 641 N.E.2d 1075 (Morris v. City Council) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. City Council, 641 N.E.2d 1075, 71 Ohio St. 3d 52, 1994 Ohio LEXIS 2324 (Ohio 1994).

Opinion

Per Curiam.

In order to be entitled to a writ of mandamus, relator must establish that (1) he has a clear legal' right to have the charter amendment initiative placed on the November 8, 1994 ballot, (2) respondents have a corresponding legal duty to submit the charter amendment initiative to the electors of Macedonia on the November 8, 1994 ballot, and (3) relator possesses no adequate remedy in the ordinary course of the law. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129.

Relator asserts in his sole proposition of law that respondents Macedonia City Council and its members had a mandatory duty to enact the enabling ordinance by September 9, 1994 in order to place the charter amendment initiative on the November 8, 1994 ballot.

Section 7, Article XVIII of the Ohio Constitution authorizes municipal corporations to adopt and amend a home rule charter, and Sections 8 and 9 of Article XVIII prescribe the procedures for adopting and amending a charter. State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 336, 617 N.E.2d 1120, 1122. Section 9 of Article XVIII, which incorporates the requirements of Section 8, allows, and on petition by ten percent of the electors, requires, the legislative authority of any city, e.g., city council, to “forthwith” authorize by ordinance an election on the charter amendment issue. Section 14, Article XVIII of the Ohio Constitution provides that “[t]he percentage of electors required to sign any petition provided for herein shall be based upon the total vote cast at the last preceding general municipal election.”

[55]*55Relator complied with the foregoing constitutional provisions by submitting a petition containing 338 signatures on August 8, 1994. Arced sent the petition to the board, which twice certified that it contained more than the required number of signatures. On the second occasion, the board verified 321 proper signatures, substantially exceeding the 217 signatures needed to have the issue placed on the November 8 ballot.

Respondents city council et al. contend that based upon council’s legitimate concerns about defects in the petitions, time constraints, and the inability of three council members to attend the scheduled September 8, 1994 meeting, council had no mandatory duty to certify the charter amendment initiative for placement on the November 8 ballot.

Since the Constitution requires that the admission of the charter amendment initiative be made by the legislature, it follows that the legislature need not make the submission unless satisfied of the sufficiency of the petitions and that all statutory requirements are fairly met. Semik, supra, 67 Ohio St.3d at 335-336, 617 N.E.2d at 1122; State ex rel. Hinchliffe v. Gibbons (1927), 116 Ohio St. 390, 395, 156 N.E. 455, 456-457. Procedures may be added to the constitutional amendment process if the additions do not conflict with the Ohio Constitution. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 22, 577 N.E.2d 645, 648-649. Section 18.01, Article XVIII of the Macedonia Charter provides that the charter “may be amended as provided by the Ohio Constitution or the Statutes of the State of Ohio.” Thus, non-conflicting portions of R.C. 731.31, which provides that “[pjetitions shall be governed * * * by the rules set forth in [R.C.] 3501.38,” apply. The law director’s objections to the petitions were premised in part on the petition requirements of R.C. 3501.38.

The city council’s constitutional authority to review the sufficiency of petitions is limited to matters of form, not substance. State ex rel. Polcyn v. Burkhart (1973), 33 Ohio St.2d 7, 10-11, 62 O.O.2d 202, 203-204, 292 N.E.2d 883, 885. A city council’s authority to determine if all applicable statutory requirements have been met is therefore more restricted than that of a board of elections. See State ex rel. Watkins v. Quirk (1978), 59 Ohio App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302. A city council may not engage in judicial or quasi-judicial determinations, e.g., analyzing if the requirements of R.C. 3501.38(F) have been satisfied. See id.; see, also, Polcyn, supra; State ex rel. Citizens for a Better Portsmouth v. Sydnor (1991), 61 Ohio St.3d 49, 52, 572 N.E.2d 649, 651. In other words, council cannot inquire into questions not apparent on the face of the petitions themselves or which require the aid of witnesses to determine. Cf. State ex rel. v. Lemon (C.P.1925), 26 Ohio N.P. (N.S.) 151, 160 (scope of authority of the city clerk limited to ministerial determination in reviewing sufficiency of municipal referendum petition).

[56]*56One of the main reasons given by city council in this case for its delay in determining the sufficiency of the petition is the law director’s determination that four of the nine part-petitions contained irregularities, and that “[i]f all of the part-petitions containing the irregularities were determined by Council to have been invalid, the petitions would not have contained the 217 valid signatures necessary to place the Charter amendments on the ballot.”

Diemert’s objection to Herchick’s part-petition involved alleged non-compliance with R.C. 3501.38(E), requiring that the circulator sign a statement on each petition paper that he witnessed the affixing of every signature. See State ex rel. Home Fed. S. & L. Assn. v. Moser (1974), 40 Ohio St.2d 94, 69 O.O.2d 442, 320 N.E.2d 672. On the face of Herchick’s part-petition, he complied with R.C. 3501.38(E). However, Diemert suggested a possible defect when he received extrinsic information from a signator that, contrary to Herchick’s statement in his circulator’s affidavit, Herchick had not witnessed her signature. Since the foregoing objection went beyond the form of the part-petition and required the aid of witnesses to determine, it presented a judicial determination which council was not authorized to make. Polcyn and Sydnor, supra. Accordingly, Her-chick’s part-petition was not ■ defective as to matters of form.

Even assuming, arguendo, that the alleged defects in the three remaining part-petitions raised by Diemert and relied upon by council to delay a prompt sufficiency determination possessed merit and further assuming that all the signatures on the three allegedly defective part-petitions were stricken, there were still at least 224 valid signatures, more than the 217 required for passage of the enabling ordinance.

As the court recently held in State ex rel. Concerned Citizens for More Professional Govt. v. Zanesville City Council (1994), 70 Ohio St.3d 455, 458, 639 N.E.2d 421

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Bluebook (online)
641 N.E.2d 1075, 71 Ohio St. 3d 52, 1994 Ohio LEXIS 2324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-city-council-ohio-1994.