Summary
In State ex rel. Griffin v. Krumholtz (1982), 70 Ohio St.2d 125, 24 O.O.3d 234, 435 N.E.2d 1110, we held that the absence of the statutorily mandated election falsification statement in a referendum petition rendered the petition defective.
Summary of this case from Stutzman v. Madison Cty. Bd. of ElectionsOpinion
No. 82-447
Decided May 26, 1982.
Elections — Referendum petition — Defective, when — Non-compliance with "election falsification statement" requirement — Mandamus — Writ denied, when.
IN MANDAMUS.
Relator, John W. Griffin, seeks an order of this court compelling respondents, members of the Montgomery County Board of Elections, to place a certain zoning referendum on the ballot at the June 8, 1982, primary election.
On December 15, 1981, the Miami Township Board of Trustees adopted a resolution changing the zoning of a tract of land, containing approximately 140 acres, from F-Flood Plain to NR-Natural Resource District. The change in zoning would permit the property to be used as a "gravel pit." Subsequently, a committee, of which relator was a member, caused a certain "referendum petition" to be circulated. This petition sought to have the resolution of December 15, 1981, submitted to the electors for their approval or rejection at the June 8, 1982, primary election. On January 13, 1982, the petition was submitted to the board of township trustees and was transmitted to the board of elections on the same date. According to the agreed statement of facts filed herein, on January 26, 1982, respondents informed relator, and his committee, that they would not certify the petition "because it was not in compliance with Ohio law." The petition did, however, contain the required number of valid signatures.
R.C. 3501.11(K) imposes a duty upon boards of elections to "[r]eview, examine and certify the sufficiency and validity of petitions and nomination papers." Inherent in a declaration of insufficiency is "the duty to specify the nature of the defect." State, ex rel. Madison, v. Cotner (1981), 66 Ohio St.2d 448, 450. The above-quoted language included in the parties' agreed statement of facts is so broad as to be practically meaningless. Moreover, it leaves room for a significant doubt as to whether the board of elections has performed its statutory duties. In this case, however, we need not reach this issue since the basis for the board of elections' refusal to certify the referendum for placement on the ballot is both clear and conceded by relator.
On March 24, 1982, relator instituted the present action in mandamus in this court.
This action was filed 76 days prior to the election. Delay in resolving the case was occasioned, first, by the board of elections' motion to dismiss (later withdrawn); and, second, by the motion of Hilltop Basic Resource, Inc., to intervene herein as a party respondent.
Ms. Lula M. Anderson, for relator.
Mr. Lee C. Falke, prosecuting attorney, and Mr. William P. Butterfield, for respondents, members of the board of elections.
Coolidge, Wall, Matusoff, Womsley Lombard Co., L.P.A., and Mr. Roger J. Makley, for intervening respondent.
The sole issue before this court is whether a writ of mandamus should issue to compel the board of elections to place the subject referendum on the ballot at the June 8, 1982, primary election.
Although respondents urge a number of bases for denying the requested writ of mandamus, we need consider only one — that relator's petition does not contain the "election falsification statement" required by R.C. 519.12 and 3501.38(J).
In part, R.C. 519.12 requires that a petition calling for a zoning referendum contain the following statement:
"THE PENALTY FOR ELECTION FALSIFICATION IS IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BOTH."
R.C. 3501.38(J) imposes the additional requirement that such statement appear in "bold face capital letters."
In place of the statutorily mandated language, relator's petition contained the following statement:
"REFERENDUM PETITION
"Revised Code Secs. 519.12, 3501.02, 3501.28
"NOTICE
"WHOEVER KNOWINGLY SIGNS THIS PETITION MORE THAN ONCE, SIGNS A NAME OTHER THAN HIS OWN, OR SIGNS WHEN NOT A LEGAL VOTER, IS LIABLE TO PROSECUTION."
With the exception of the substitution of the word "legal" for the word "qualified," this statement was apparently taken from R.C. 3519.05 as it existed prior to September 27, 1974.
Clearly, the statement contained in relator's petition varies from that set forth in R.C. 519.12. Moreover, the statement which does appear on the petition, although typed in capital letters, is not in bold face capital letters. Thus, there exist two violations of the election statutes.
Relator, while acknowledging these defects, nevertheless urges this court to compel the board of elections to certify the issue for placement on the ballot. Among the grounds offered in support of his position, relator contends that the petition substantially complies with the statute, since "[t]he goals of the election statute have been accomplished although the exact wording of the `election falsification statement' did not appear on relator's petition." Related to the foregoing is relator's contention that his statement "more accurately described what, in fact, election falsification entailed * * *."
We view such arguments charily. In 1974, when the General Assembly changed the language of the election falsification statement, its purpose was to insure not only that the signers and circulators of the petition be made aware of the fact that election falsification is a crime but also that significant sanctions are imposed for violations of the election laws. Moreover, to dispel any possible misconceptions that might arise, the General Assembly required such statement to be emphasized by placing it in bold face capital letters.
Relator's argument that his statement more accurately described what election falsification entailed is without merit. To adopt relator's argument would necessarily require this court to find that relator, and not the General Assembly, is in the best position to determine the appropriate language to be included in referendum petitions. This we decline to do.
"The general rule in Ohio is that election statutes are mandatory and must be strictly complied with." State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St.2d 173, 174; State, ex rel. Evergreen Co., v. Bd. of Elections (1976), 48 Ohio St.2d 29, 31. We find no reason in this case to depart from this salutary principle.
For the foregoing reasons, the writ of mandamus is denied.
Writ denied.
W. BROWN, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
CELEBREZZE, C.J., and SWEENEY, J., dissent.