State ex rel. Lewis v. Rolston

874 N.E.2d 1200, 115 Ohio St. 3d 293
CourtOhio Supreme Court
DecidedOctober 1, 2007
DocketNo. 2007-1639
StatusPublished
Cited by9 cases

This text of 874 N.E.2d 1200 (State ex rel. Lewis v. Rolston) 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. Lewis v. Rolston, 874 N.E.2d 1200, 115 Ohio St. 3d 293 (Ohio 2007).

Opinions

Per Curiam.

{¶ 1} This is an original action for a writ of mandamus to compel a village fiscal officer to certify the sufficiency and validity of an initiative petition to the Clinton County Board of Elections for placement of the proposed ordinance on the November 6, 2007 election ballot. Because a fiscal officer has no duty to do so when a relator does not file a precirculation certified copy of the proposed ordinance, we deny the writ.

{¶ 2} Relator, William C. Lewis, is an elector, resident, and taxpayer of the village of Sabina. Lewis is part of a committee formed in May 2007 to propose an ordinance. The proposed ordinance authorizes the mayor, within five days of [294]*294election or appointment, to assume the duties of village administrator, and if the mayor decides to do so, to receive additional compensation.

{¶ 3} On May 17, 2007, Lewis delivered copies of the initiative petition proposing the ordinance to respondent Sabina Village Fiscal Officer Jodi Rolston. None of the copies was verified, attested to, or certified by Lewis or any other proponent of the ordinance. At Lewis’s request, the village fiscal officer stamped on each copy, “Certified Copy Received May 17, 2007 at 3:27 p.m.” and hand-wrote on each copy, “The undersigned hereby attests that the aforementioned original proposed Ordinance is a Certified copy filed in this office on May 17, 2007.” The fiscal officer signed the attestation. Nevertheless, the fiscal officer neither prepared the proposed ordinance nor verified it.

{¶ 4} On July 12, 2007, Lewis filed an initiative petition with the village fiscal officer that contained 302 signatures. The petitioners requested placement of the proposed ordinance, titled “An ordinance Giving the Option to the Mayor to Act as Village Administrator,” on the November 6, 2007 general election ballot.

{¶ 5} At the mayor’s request, the village solicitor prepared an opinion on the legality of the proposed ordinance. The village solicitor advised the fiscal officer not to submit the petition to the board of elections, concluding that the proposed ordinance “is illegal, contrary to Ohio law, and therefore would be void.” According to the village solicitor, if the ordinance were enacted, it would violate several Revised Code provisions, including R.C. 735.271, 705.25, and 731.13. The village solicitor emphasized that he was “not taking any position on the validity of the initiative petition per se, nor its signatures, but simply as to the legality of the proposed ordinance.”

{¶ 6} Based on the village solicitor’s opinion, the fiscal officer refused to certify the petition and the proposed ordinance to the Clinton County Board of Elections.

{¶ 7} At the village council’s regular meeting on July 26, Lewis requested that the village solicitor institute a mandamus action to compel the fiscal officer to certify the petition and the ordinance to the board of elections. At the council meeting, the village solicitor stated that he had advised the fiscal officer not to certify the petition and ordinance to the board of elections because the proposed ordinance is illegal, and he rejected Lewis’s request to bring a mandamus action to compel the fiscal officer to certify it to the board of elections.

{¶ 8} On August 31, 2006, Lewis filed this expedited election action for a writ of mandamus to compel the fiscal officer to certify the sufficiency and validity of the initiative petition to the Clinton County Board of Elections for placement on the November 6, 2007 election ballot. Lewis also names the village council as a [295]*295respondent and requests an award of attorney fees. Respondents submitted an answer, and the parties filed evidence and briefs.

{¶ 9} This cause is now before us for consideration of the merits.

Mandamus

{¶ 10} To be entitled to the writ, Lewis must establish a clear legal right to have the initiative petition and a certified copy of the proposed ordinance transmitted to the board of elections, a corresponding clear legal duty on the part of the fiscal officer to transmit them, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Marsalek v. S. Euclid City Council, 111 Ohio St.3d 163, 2006-Ohio-4973, 855 N.E.2d 811, ¶ 8. Because of the proximity of the November 6, 2007 election, Lewis has established that he lacks an adequate remedy in the ordinary course of the law. State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 21.

R.C. 731.32

{¶ 11} Respondents contend that Lewis cannot establish a clear legal right to the requested relief or a clear legal duty on the part of the fiscal officer to provide it, because Lewis failed to comply with R.C. 731.32. “R.C. 731.32 does not expressly permit substantial compliance, so it requires strict compliance.” State ex rel. Barletta v. Fersch, 99 Ohio St.3d 295, 2003-Ohio-3629, 791 N.E.2d 452, ¶ 17. R.C. 731.32 provides:

{¶ 12} ‘Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition * * * shall, before circulating such petition, file a certified copy of the proposed ordinance or measure with the’ city auditor or the village clerk.”

{¶ 13} Villages are authorized to combine the duties of the clerk and the treasurer into one appointed office — the village fiscal officer. R.C. 733.262. Apparently, Sabina has exercised this authority, and the fiscal officer now performs the duties formerly performed by the clerk and the treasurer. Therefore, under R.C. 731.32, Lewis had to file a certified copy of his proposed ordinance with the fiscal officer.

{¶ 14} Certification requires an attestation:

{¶ 15} “As used in this section, ‘certified copy’ means a copy containing a written statement attesting that it is a true and exact reproduction of the original proposed ordinance or measure * * *.” (Emphasis added.) R.C. 731.32.
{¶ 16} “Attest” means “to certify to the verity of a copy of a public document formally by signature,” and an attached copy of a document is “one which has [296]*296been examined and compared with the original, with a certificate or memorandum of its correctness, signed by the persons who have examined it.” (Emphasis added.) Black’s Law Dictionary (6th Ed.1990) 127-128; see, also, State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 22.

{¶ 17} Lewis did not comply with R.C. 731.32. He did not file a certified copy of the proposed ordinance with a written statement “attesting that it is a true and exact reproduction of the original proposed ordinance.” Id. Instead, he filed a copy of the entire initiative petition with the fiscal officer’s certification on the petition.

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Cite This Page — Counsel Stack

Bluebook (online)
874 N.E.2d 1200, 115 Ohio St. 3d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lewis-v-rolston-ohio-2007.