Summary
striking down initiative for lack of a title where it began directly with legislative language
Summary of this case from Meyers v. BaylessOpinion
No. 90-2142
Submitted May 6, 1991 —
Decided August 28, 1991.
APPEAL from the Court of Appeals for Lake County, No. 90-L-15-128.
In August 1990, the Lake County Board of Elections ("the board"), appellant, received a certification and an underlying copy of an initiative petition that proposed submission of the following ordinance to Painesville electors at the November 6, 1990 general election:
"Section I No private citizen, corporation, business, unincorporated association[,] public official or any other person(s) shall construct, maintain or operate an infectious waste, toxic waste, or nuclear waste incinerator or landfill within the city of Painesville Municipal limits, nor shall ana [ sic, any] existing infectious waste incinerator facility be allowed to continue to operate within the city of Painesville Municipal limits. An infectious waste, toxic waste, or nuclear waste incinerator for the purpose of this law shall be defined as any regional plant that incinerates infectious biological specimens, parts, or microbes, or lethal chemical wastes, or lethal nuclear by-products in its disposal process.
"Section II Any private citizen may bring a lawsuit in proper jurisdiction to obtain injuctive [ sic, injunctive] relief to enforce this ordinance without the necessity to post bond or other security. The City of Painesville shall further pay attorney fees incurred by any private citizen prevailing in the enforcement of this law.
"Section III Violation of this law by any employee, officer or agent of the city of Painesville shall be a misdemeanor of the first degree, punishable by a maximum of six months imprisonment and/or a maximum of $1,000.00 fine.
"If any portion of [ sic, or] section of this law is found to be invalid or unconstitutional by any court of competent jurisdiction, the remaining sections and portions of this law shall be unaffected and enforceable."
G.R. Esch, appellee, protested the petition because it did not contain a "full and correct copy of the title * * * of the proposed ordinance" as required by R.C. 731.31. The board dismissed the protest on September 21, 1990. On the same day, Esch filed a complaint for a writ of mandamus in the Court of Appeals for Lake County seeking to compel the board to reject the initiative petition.
The court of appeals granted the writ. It held that the R.C. 731.31 was mandatory and established the board's clear duty to reject the initiative petition. The board appealed, and the court stayed execution of its judgment pending a decision by this court. The stay allowed an election on the proposed ordinance, the results of which have been sealed.
The cause is now before the court upon an appeal as of right.
Reminger Reminger and Nick C. Tomino, for appellee.
Steven C. LaTourette, prosecuting attorney, and Michael P. Brown, for appellant.
We are asked to decide in this appeal if the title requirement in R.C. 731.31 must be met with strict compliance. For the reasons that follow, we hold that it must and, therefore, that the board of elections has a clear duty to reject the instant noncomplying petition. Moreover, because the board does not argue that Esch has a plain and adequate remedy at law, we further hold that the court of appeals properly granted Esch a writ of mandamus.
R.C. 731.31 provides, in pertinent part:
"Any initiative or referendum petition may be presented in separate parts, but each part of any initiative petition shall contain a full and correct copy of the title and text of the proposed ordinance or other measure, and each part of any referendum petition shall contain the number and a full and correct copy of the title of the ordinance or other measure sought to be referred. * * *." (Emphasis added.)
Conceding that the protested petition bears no title for the proposed ordinance, the board argues that the lack of a title is a technical defect and that strict compliance with this R.C. 731.31 requirement is not necessary. Building on this argument and applying the standard for reviewing determinations of petition sufficiency, see State, ex rel. Beck, v. Casey (1990), 51 Ohio St.3d 79, 80, 554 N.E.2d 1284, 1285, the board further argues that it did not misinterpret or disregard R.C. 731.31 by failing to reject the petition.
We reject these arguments based on the authority cited by the court of appeals. As that court observed, we allowed a writ of mandamus in State, ex rel. Burech, v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153, to compel the rejection of referendum petition papers not in compliance with the R.C. 305.32 requirement that "each petition paper shall contain a full and correct copy of the title and text of the resolution or rule sought to be referred." There, as here, the board of elections argued that these were technical requirements, the absence of which did not invalidate the petition. However, because omitting the title and text interfered with the petition's ability to fairly and substantially present the issue, we held, consistent with general rule for election statutes, that the R.C. 305.32 requirement was mandatory and warranted strict compliance. See, also, Chevalier v. Brown (1985), 17 Ohio St.3d 61, 63, 17 OBR 64, 66, 477 N.E.2d 623, 625; State, ex rel. Evergreen, Co., v. Bd. of Elections (1976), 48 Ohio St.2d 29, 31, 2 O.O.3d 126, 127, 356 N.E.2d 716, 717; State, ex rel. Janasik, v. Sarosy (1967), 12 Ohio St.2d 5, 41 O.O.2d 3, 230 N.E.2d 346.
The board of elections urges us to distinguish Burech because the petition in that case lacked both a text and a title. However, to do so would ignore the fact that a title also provides notice of the proposal to signers of an initiative petition. More so than the text, the title immediately alerts signers to the nature of proposed legislation. As this notice helps prevent the signers from being misled, we follow Burech and hold that the instant petition must contain a title for the proposed ordinance as required by R.C. 731.31.
The board's reliance on Stern v. Bd. of Elections (1968), 14 Ohio St.2d 175, 43 O.O.2d 286, 237 N.E.2d 313, State, ex rel. Maurer, v. Franklin Cty. Bd. of Elections (1987) 33 Ohio St.3d 53, 514 N.E.2d 709, and Waste Technologies Industries v. Columbiana Cty. Bd. of Elections (Nov. 1, 1988), Columbiana App. No. 87-C-54, unreported, 1988 WL 117995, does not persuade us to hold otherwise. The court of appeals properly distinguished Stern and Maurer because the statutes in those cases expressly allowed substantial compliance, and R.C. 731.31 does not. Moreover, although the court in Waste Technologies held that legislation proposed on an initiative petition, if only six lines in length, could substantially comply with R.C. 731.31, that court did not consider our decision in Burech.
A writ of mandamus may issue when the relator has a clear legal right to the relief prayed for, respondent has a clear legal duty to perform the requested act, and the relator has no plain and adequate remedy at law. State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81. Here, Esch has established that the board of elections had a duty under R.C. 731.31 to reject the untitled petition and that Esch is entitled to performance of this act. As the board of elections does not dispute the absence of a plain and adequate remedy at law, the issuance of a writ of mandamus was appropriate. Therefore, the court of appeals' judgment is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
WRIGHT, J., dissents.
I must respectfully dissent despite my agreement with the result achieved by the majority. We have consistently held that mandamus will lie only where official action is to be ordered or compelled. Mandamus is inappropriate where one seeks to prevent such action. See State, ex rel. Assn. for the Defense of the Washington Local School Dist., v. Kiger (1989), 42 Ohio St.3d 116, 537 N.E.2d 1292; State, ex rel. Stamps, v. Automatic Data Processing Bd. of Montgomery Cty. (1989), 42 Ohio St.3d 164, 538 N.E.2d 105; State, ex rel. Kay, v. Brown (1970), 24 Ohio St.2d 105, 53 O.O.2d 284, 264 N.E.2d 908; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631; State, ex rel. Smith, v. Indus. Comm. (1942), 139 Ohio St. 303, 22 O.O. 349, 39 N.E.2d 838.
The majority relies on State, ex rel. Burech, v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153, which in my view represents an aberration from the established case law noted above. For these reasons I would reverse the decision granting mandamus in this case.