State ex rel. Rose v. Lorain County Board of Elections

736 N.E.2d 886, 90 Ohio St. 3d 229
CourtOhio Supreme Court
DecidedOctober 5, 2000
DocketNo. 00-1593
StatusPublished
Cited by43 cases

This text of 736 N.E.2d 886 (State ex rel. Rose v. Lorain 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. Rose v. Lorain County Board of Elections, 736 N.E.2d 886, 90 Ohio St. 3d 229 (Ohio 2000).

Opinions

Lundberg Stratton, J.

Relators assert that they are entitled to the requested extraordinary relief in mandamus to compel the board of elections and the township to place the referendum issue on the November 7 election ballot. Relators contend that the board of elections abused its discretion and disregarded applicable law by refusing to place the referendum issue on the November 7 election ballot. According to relators, Rose had a common-law right to withdraw his first and second petitions and resubmit them as one petition.

We are cognizant that “[t]he initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.” Section If, Article II of the Ohio Constitution. Moreover, “ ‘ “[provisions for municipal initiative or referendum should be liberally construed in favor of the power reserved so as to permit rather than preclude the exercise of such power, [231]*231and the object sought to be attained should be promoted rather than prevented or obstructed.” ’ ” Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 40, 671 N.E.2d 1, 5, quoting State ex rel. King v. Portsmouth (1986), 27 Ohio St.3d 1, 4, 27 OBR 73, 75, 497 N.E.2d 1126, 1128, quoting State ex rel. Sharpe v. Hitt (1951), 155 Ohio St. 529, 535, 44 O.O. 489, 491, 99 N.E.2d 659, 662.

R.C. 519.12(H) requires that each referendum petition on a zoning resolution amendment adopted by a board of township trustees “[i]n addition to meeting the requirements of this section, * * * shall be governed by the rules specified in section 3501.38 of the Revised Code.” (Emphasis added.) See, also, Markus v. Trumbull Cty. Bd. of Elections (1970), 22 Ohio St.2d 197, 199, 51 O.O.2d 277, 279, 259 N.E.2d 501, 502. The board of elections determined that R.C. 3501.38 prohibited relators from filing any petition besides Rose’s first petition.

In construing R.C. 3501.38, our paramount concern is the legislative intent in enacting the statute. In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 265, 725 N.E.2d 271, 277. We must first review the statutory language. Words and phrases used shall be read in context and construed according to the rules of grammar and common usage. State ex rel. Antonucci v. Youngstown, City School Dist. Bd. of Edn. (2000), 87 Ohio St.3d 564, 565, 722 N.E.2d 69, 71; R.C. 1.42.

R.C. 3501.38 provides:

“All * * * petitions presented to or filed with * * * a board of elections * * * for the holding of an election on any issue shall, in addition to meeting the other specific requirements prescribed in the sections of the Revised Code relating thereto, be governed by the following rules:

a * *

“(I) No alterations, corrections, or additions may be made to a petition after it is filed in a public office.

u * ^ *

“(K) All separate petition papers shall be filed at the same time, as one instrument.” (Emphasis added.)

Respondents contend that R.C. 3501.38(1) and (K) prohibit the withdrawal and refiling of the petitions as the refiling constitutes an amendment. Therefore, we must reexamine R.C. 3501.38(1) and (K).

R.C. 3501.38(1)

R.C. 3501.38(1), read literally, makes eminent sense. A voter should have confidence that the petition he or she signed reflects all of the information and only the information assented to by the signatory. In this provision, the General [232]*232Assembly ensures that what the voter signed is what is filed. Thus, under R.C. 3501.38(1), it would not be proper for the petitioner to withdraw the petition, change a date, and then resubmit the same petition. See State ex rel. Clinard v. Greene Cty. Bd. of Elections (1990), 51 Ohio St.3d 87, 554 N.E.2d 895. This would defeat the purpose of the R.C. 3501.38(1) requirement that petitions, once filed, not be altered. However, nowhere in R.C. 3501.38(1) does the language of the statute prohibit withdrawal of a petition.

In this case, the petitioner did not alter the petitions in any way. He simply refiled the same petitions that had been previously signed by the voters. Therefore, since the petitioner only withdrew and refiled the petitions without alteration, we conclude that R.C. 3501.38(1) does not prohibit what occurred in' this case.1 The mere withdrawal of the petitions is not an alteration, correction, or addition to the petitions. While an alteration, correction, or addition would involve some sort of physical change to the petitions, a withdrawal merely involves the removal of the petitions from the public office in which they were filed. After the withdrawal of the petitions, there is nothing before the public office and, therefore, there is nothing to be acted upon. Rose may even be permitted to withdraw and discard previously filed petitions, and then refile a new petition before the filing deadline, because a new petition with fresh signatures ensures the integrity of the contents of the petition.

Accordingly, since R.C. 3501.38(1) expressly deals only -with alterations, corrections, and additions to petitions filed and in the possession of the public office, but contains no express provision prohibiting the withdrawal of the petitions, we therefore hold that R.C. 3501.38(1) does not prohibit the withdrawal and refiling of Rose’s combined petitions.

R.C. 8501.88(K)

Respondents also claim that R.C. 3501.38(E) bars the filing of the two previously withdrawn and now combined petitions. The respondents contend that the petition, once filed, may not be withdrawn and refiled, for to do so would constitute an amendment. However, upon carefully examining the statute, we conclude that R.C. 3501.38(E) does not expressly prohibit the withdrawal and refiling of a petition.

The respondents rely on our holdings in at least three prior cases that appear to prohibit withdrawal and refiling of petitions. First, in State ex rel. Weaver v. [233]*233Wiethe (1965), 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, a candidate for city-council filed a nominating petition consisting of several separate petition papers containing an insufficient number of valid signatures. After the board of elections took action on his petition and notified the candidate of the insufficiency, he attempted to withdraw his nominating petition to obtain additional valid signatures on additional petition papers and to refile at a later time. We held that the city charter, which read much like R.C. 3501.38(K), precluded the candidate from withdrawing his petition papers or filing additional papers. Id. at 3, 33 O.O.2d at 2, 210 N.E.2d at 882. Moreover, we concluded that R.C. 3501.38(1).

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Cite This Page — Counsel Stack

Bluebook (online)
736 N.E.2d 886, 90 Ohio St. 3d 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-rose-v-lorain-county-board-of-elections-ohio-2000.