State ex rel. Bolzenius v. Preisse (Slip Opinion)

2018 Ohio 3708, 119 N.E.3d 358, 155 Ohio St. 3d 45
CourtOhio Supreme Court
DecidedSeptember 14, 2018
Docket2018-1221
StatusPublished
Cited by10 cases

This text of 2018 Ohio 3708 (State ex rel. Bolzenius v. Preisse (Slip Opinion)) 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
State ex rel. Bolzenius v. Preisse (Slip Opinion), 2018 Ohio 3708, 119 N.E.3d 358, 155 Ohio St. 3d 45 (Ohio 2018).

Opinions

Per Curiam.

*45{¶ 1} In this expedited election case, relators, six Columbus electors,1 seek a writ of mandamus to compel respondents, the members of the Franklin County Board of Elections (collectively, the "board members"),2 to place a proposed city ordinance on the November 6, 2018 ballot. If adopted, the proposal would establish a "bill of rights" related to water, soil, and air protection and prohibit certain oil-and-gas-extraction activities within the city. The board members excluded the measure from the ballot, finding that the proposed ordinance is beyond the city's legislative power because it would, among other things, create new causes of action. Because the board members did not abuse their discretion, we deny the writ.

I. FACTUAL BACKGROUND

{¶ 2} Relators seek the adoption of a municipal ordinance that would establish for Columbus residents-and for "natural communities and ecosystems" in the city-a "Community Bill of Rights for Water, Soil, and Air Protection." Among the *360rights enumerated are rights to "Potable Water," "Clean Air," "Safe Soil," and "Peaceful Enjoyment of Home" and the "Right to be Free from Toxic Trespass." The proposal also would declare that "[n]atural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess the rights to exist and flourish within the City of Columbus." *46{¶ 3} In an effort to secure and protect these rights, relators' proposal would prohibit most hydrocarbon-extraction activities within the city and impose strict liability on any government or corporation that violates its terms. It also purportedly would invalidate any permit or license "issued by any state, federal or international entity that would violate the prohibitions of this ordinance or any rights secured by this Ordinance, the Ohio Constitution, the United States Constitution, or other laws." Any violation of the ordinance would be a first-degree misdemeanor. The proposed ordinance provides that "any resident of the City of Columbus" may "enforce the rights and prohibitions of this Community Bill of Rights through an action brought in any court possessing jurisdiction over activities occurring within the City."

{¶ 4} On June 26, 2018, the committee formed to place the measure on the ballot submitted its part-petitions to the Columbus city clerk. After the Franklin County Board of Elections certified a sufficient number of valid signatures to qualify the measure for the ballot, the Columbus City Council, on July 30, passed an ordinance instructing the elections board to place the initiative petition on the November 2018 ballot. Before the matter was considered by the elections board, two Columbus electors, Loretta Settelmeyer and Robert Wall, protested the proposed measure, arguing that it does not comply with the Columbus City Charter's requirements for initiative petitions and that it is outside the city's legislative power. The board members agreed with the latter argument and on August 24 voted to exclude the initiative from the ballot.

{¶ 5} On August 28, relators filed this original action seeking a writ of mandamus to compel the board members to certify the initiative petition for placement on the ballot. On August 31, we granted a motion to intervene filed by Settelmeyer and Wall (collectively, the "intervening respondents").

II. ANALYSIS

A. The board members properly determined that the proposed ordinance is outside the city's power to enact legislation

{¶ 6} To be entitled to a writ of mandamus, relators must prove, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board members 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. Given the proximity of the November election, relators lack an adequate remedy in the ordinary course of the law. State ex rel. Ohio Liberty Council v. Brunner , 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27. To satisfy the first two requirements, relators must show that the board members engaged in fraud or corruption, abused their discretion, or acted in clear disregard of applicable legal *47provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. Because relators make no allegation of fraud or corruption, they must show that the board members abused their discretion or disregarded the law when they rejected the initiative petition. *361{¶ 7} In their first proposition of law, relators assert that they have a clear right to have their proposed ordinance placed on the ballot because their initiative petition satisfies the signature requirement and Columbus City Council passed an ordinance calling for placement of the measure on the ballot. Relators make three basic arguments in support of their claim. First, they contend that the board members have only a ministerial role with respect to initiative petitions, with no legitimate statutory authority to exclude a measure from the ballot for substantive legal reasons. Second, they argue that the separation-of-powers doctrine prevents the board members from deciding substantive legal questions and thus renders unconstitutional the statutory amendments introduced by 2016 Sub.H.B. No. 463 ("H.B. 463"), which permit boards of elections to determine whether a proposed ordinance is beyond a municipality's legislative power. Finally, they assert that Columbus Charter 42-11 prevents the board members from making substantive legal determinations regarding relators' proposed ordinance. We reject these arguments.

1. R.C. 3501.11(K)(1) authorizes a county board of elections to determine whether a proposed ordinance is beyond a municipality's legislative power

{¶ 8} Before the General Assembly enacted H.B. 463, we interpreted former R.C. 3501.11(K) (now R.C.

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Bluebook (online)
2018 Ohio 3708, 119 N.E.3d 358, 155 Ohio St. 3d 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-bolzenius-v-preisse-slip-opinion-ohio-2018.