State ex rel. Crossman Communities of Ohio, Inc. v. Greene County Board of Elections

717 N.E.2d 1091, 87 Ohio St. 3d 132
CourtOhio Supreme Court
DecidedOctober 5, 1999
DocketNo. 99-1605
StatusPublished
Cited by33 cases

This text of 717 N.E.2d 1091 (State ex rel. Crossman Communities of Ohio, Inc. v. Greene County Board of Elections) 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. Crossman Communities of Ohio, Inc. v. Greene County Board of Elections, 717 N.E.2d 1091, 87 Ohio St. 3d 132 (Ohio 1999).

Opinions

Per Curiam.

We initially reject intervening respondents’ contention that this expedited election case should be dismissed for want of prosecution because relators did not file their evidence and brief within the time specified by S.Ct.Prac.R. X(9). Relators entered into a limited stipulated extension with respondent board pursuant to S.Ct.Prac.R. XIV(3)(B)(2)(a) and X(8), which extended their time to September 13 to file their evidence and brief. After construing S.Ct.Prac.R. X(9) in pari materia with these provisions and emphasizing that relators confirmed their interpretation of the rule with the Clerk’s Office, that the only opposing party at the time — the board — agreed to the stipulation, and that the stipulation was limited to an extremely brief period of time, dismissal pursuant to S.Ct.Prac.R. X(9) and (11) is not warranted. The intervening respondents’ assent to the extension was not required because they were not parties at the time the stipulation was entered into.

We also reject intervening respondents’ additional preliminary argument that dismissal is appropriate because relators failed to list the addresses of all of the parties in their amended complaint, as intervening respondents claim is required under Civ.R. 10(A). As relators note, S.Ct.Prac.R. X(4)(A) requires that only the name, title, and address of the respondent are necessary in an original action complaint filed in this court. Relators’ .complaint complied with S.Ct.Prac.R. X(4)(A). The spirit of our Rules of Practice, much like the Rules of Civil Procedure, favors the resolution of cases upon their merits rather than upon claimed pleading deficiencies. See, generally, Cecil v. Cottrill (1993), 67 Ohio St.3d 367, 372, 618 N.E.2d 133, 137.

Having thus rejected intervening respondents’ arguments claiming pleading deficiencies, we now address the merits of relators’ claimed entitlement to a writ of prohibition.

In order to be entitled to the requested writ of prohibition, relators must establish that (1) the board of elections is about to exercise judicial or quasi-judicial power, (2) the exercise of such power is not legally authorized, and (3) if the writ is denied, they will suffer injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 305, 686 N.E.2d 238, 241. Regarding the first two requirements, in extraordinary actions challenging the quasi-judicial decision of a board of elections, the applicable standard is [136]*136whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. E. Ohio Gas Co. v. Wood Cty. Bd. of Elections (1998), 83 Ohio St.3d 298, 300, 699 N.E.2d 916, 918. And despite respondents’ contentions to the contrary, the board exercised quasi-judicial authority in denying relators’ protests to the referendum, petition following an evidentiary hearing, and prohibition may issue to prevent the placement of names or issues on a ballot even though a protest hearing has been completed, as long as the election has not yet been held. R.C. 3501.39(A)(2); Cooker Restaurant Corp., 80 Ohio St.3d at 306, 686 N.E.2d at 242; Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 37, 671 N.E.2d 1, 3; State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291, 649 N.E.2d 1205, 1207.

Relators contend that the board abused its discretion and acted in clear disregard of applicable law by denying their protests and placing the referendum issue on the November 2 ballot. In support of their contention, relators claim that Resolution No. 59-99 is an administrative act not subject to referendum, and the referendum petition failed to contain an attached certified copy of Resolution No. 59-99 as required by R.C. 731.32.

Section If, Article II of the Ohio Constitution provides initiative and referendum powers only on questions that municipalities “may now or hereafter be authorized by law to control by legislative action.” See, also, Section 8.01, Article XVIII, Fairborn Charter, which specifies that “[t]he provisions for the Initiative and Referendum in municipal corporations, now in force or hereafter enacted, as prescribed by the laws of the State of Ohio, shall govern.” Section If, Article II excludes administrative actions taken by a municipal legislative authority from referendum proceedings. Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 82 Ohio St.3d 539, 697 N.E.2d 181, paragraph three of the syllabus; Myers v. Schiering (1971), 27 Ohio St.2d 11, 14, 56 O.O.2d 6, 8, 271 N.E.2d 864, 866.

“The test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence.” Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph two of the syllabus. Consequently, if the action creates a law, it is legislative and subject to referendum, but if the action executes or administers an existing law, the action is administrative and not referendable. See Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 82 Ohio St.3d 539, 544, 697 N.E.2d 181, 185.

More specifically, in applying the foregoing test to zoning cases involving planned unit development (“PUD”), we have held that “the implementation of a PUD, as well as its creation, is a legislative act subject to referendum” because [137]*137the action of approving a plat is the functional equivalent of traditional legislative zoning, although the entire PUD area is covered by the same nominal zoning classification both before and after the approval of the plat. (Emphasis added.) State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5, 11, 630 N.E.2d 313, 317-318; Peachtree Dev. Co. v. Paul (1981), 67 Ohio St.2d 345, 351, 21 O.O.3d 217, 220, 423 N.E.2d 1087, 1092; Gray v. Trustees of Monclova Twp. (1974), 38 Ohio St.2d 310, 314, 67 O.O.2d 365, 367, 313 N.E.2d 366, 369.

In accordance with the foregoing precedent, Resolution No. 59-99 constituted a referendable, legislative act because it implemented the PUD by approving the final development plan for Indian Ridge.

Relators next contend that the referendum petitioners violated R.C. 731.32, which provides:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Young v. Franklin Cty. Bd. of Elections
2022 Ohio 1432 (Ohio Court of Appeals, 2022)
State ex rel. Baryak v. Trumbull Cty. Bd. of Elections
2019 Ohio 4655 (Ohio Court of Appeals, 2019)
U.S. Bank v. Hill
2018 Ohio 4532 (Ohio Court of Appeals, 2018)
State ex rel. Scott v. Franklin Cty. Bd. of Elections
2014 Ohio 1395 (Ohio Court of Appeals, 2014)
State ex rel. Stoll v. Logan County Board of Elections
117 Ohio St. 3d 76 (Ohio Supreme Court, 2008)
State Ex Rel. Todd v. Felger, Unpublished Decision (1-31-2007)
2007 Ohio 731 (Ohio Court of Appeals, 2007)
Rankin v. Underwood, Unpublished Decision (3-17-2006)
2006 Ohio 1237 (Ohio Court of Appeals, 2006)
State ex rel. McCord v. Delaware County Board of Elections
106 Ohio St. 3d 346 (Ohio Supreme Court, 2005)
State ex rel. Steele v. Morrissey
815 N.E.2d 1107 (Ohio Supreme Court, 2004)
State ex rel. Barletta v. Fersch
99 Ohio St. 3d 295 (Ohio Supreme Court, 2003)
Stutzman v. Madison Cty. Bd. of Elections
2001 Ohio 1624 (Ohio Supreme Court, 2001)
Stutzman v. Madison County Board of Elections
757 N.E.2d 297 (Ohio Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
717 N.E.2d 1091, 87 Ohio St. 3d 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-crossman-communities-of-ohio-inc-v-greene-county-board-of-ohio-1999.