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State ex rel. Van de Kerkhoff v. Dowling

Supreme Court of Ohio
Jun 26, 1991
61 Ohio St. 3d 55 (Ohio 1991)

Opinion

No. 90-746

Submitted April 16, 1991 —

Decided June 26, 1991.

IN MANDAMUS.

ON REHEARING.

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT.

In December 1989, respondent city of Lakewood, through its city council, passed Ordinance No. 47-89, which rezoned certain residential property near Lakewood Hospital to accommodate the hospital's plans for expansion. Relators, the Committee for the Referendum Petition for the Hospital Rezoning Ordinance No. 47-89, and its chairperson, Mauricia A. Van de Kerkhoff, oppose the zoning change and the hospital expansion.

In January 1990, relators filed, pursuant to Article XI of the Lakewood City Charter, forty-seven referendum part-petitions containing 2,460 signatures with respondent Karen A. Dowling, the Clerk of the Lakewood City Council. The petition signatures were accompanied only by unsworn circulator statements.

For Ordinance No. 47-89 to be submitted to the city council for reconsideration, and failing reconsideration, to the voters in a referendum election under the charter, relators needed 2,245 valid signatures on their petition. As council clerk, Dowling was charged with determining the sufficiency of relators' part-petitions, and she engaged the Cuyahoga County Board of Elections (the "board") to assist her in making this determination. The board determined that 1,755 petition signatures were valid. However, the board also determined that the part-petitions did not include circulator affidavits as required by Section 3, Article XI of the charter.

Dowling notified relators by letter that their part-petitions contained "prima facie insufficient signatures." However, her letter did not mention the 1,755 signatures approved by the board. It instead advised that the charter required circulator affidavits for each part-petition.

Thereafter, relators attempted to supplement their part-petitions pursuant to Section 5, Article XI of the charter, which allows submission of additional signatures "[i]n the event the initial petition contained prima-facie sufficient signatures." On February 20, 1990, relators presented to Dowling (1) a series of circulator affidavits for their initial part-petitions, and (2) new part-petitions that contained six hundred twenty-eight additional signatures with corresponding circulator affidavits.

Dowling rejected relators' supplementary materials. She determined that circulator affidavits were essential to all petitions filed under Article XI of the charter. Since relators' initial part-petitions did not include circulator affidavits, Dowling apparently concluded that those part-petitions were themselves invalid and, therefore, that relators could not supplement them.

In May 1990, relators sought a writ of mandamus to compel respondents to accept the supplementary materials for filing and to determine the sufficiency of their part-petitions, as supplemented. On October 24, 1990, the parties were notified, pursuant to Civ.R. 12(B), that respondents' motion to dismiss would be considered as a motion for summary judgment under Civ.R. 56. Since then, relators and respondents have submitted evidence, and relators have moved for summary judgment in their favor.

Phillips Co., L.P.A., and Gerald W. Phillips, for relators.

David R. Harbarger, Law Director, and Michael E. Murman, for respondent.

Squire, Sanders Dempsey, Daniel J. O'Loughlin and Charles R. McElwee II; and Fred M. DeGrandis, urging denial of the writ for amicus curiae, Lakewood Hospital.

Lakewood Hospital's motion to file a brief as an amicus curiae is granted.


For a writ of mandamus to issue, relators must first show that they are entitled to respondents' performance of a clear legal duty. State, ex rel. The Fairfield Leader, v. Ricketts (1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491. To establish a duty for respondents to accept and determine the sufficiency of their part-petitions, as supplemented, relators rely on the Lakewood Charter, principles of estoppel and the doctrine of substantial compliance. We find relators' reliance misplaced and, therefore, deny the writ.

The Charter

Relators argue that they are entitled to supplement their part-petitions under Section 5, Article XI of the charter because their initial part-petitions contained more than 2,245 signatures "on their face." Section 5 provides, in part:

"If the Clerk's certificate shows that the petition contains insufficient valid signatures in its support[,] he shall at once notify each member of the committee [that filed the petition] * * *. In the event the initial petition contained prima-facie sufficient signatures, additional signatures of qualified electors signed in the manner required in Section 3 of this article [and] appended to petitions in form as previously filed may[,] within fifteen (15) days from the date of the notification to the committee[,] be filed with the Clerk. Within ten (10) days after the filing of such further petitions, the Clerk shall examine them and attach thereto his certificate of the result. If still insufficient, or if no further petitions have been filed, the Clerk shall file the petition in his office and shall notify in the manner herein provided each member of the committee of that fact." (Emphasis added.)

Respondents argue that petition signatures are not prima facie sufficient under the charter unless accompanied by circulator affidavits and that without circulator affidavits, relators' initial part-petitions were irreparably invalid. Respondents rely mainly on Section 3, Article XI of the charter, which provides:

"Each signer of a petition shall sign his name in ink or indelible pencil, and shall place on the petition paper after his name, his place of residence by street and number. The signatures to any such petition paper need not all be appended to one paper but to each such paper there shall be attached an affidavit by the circulator thereof stating the number of signers to such part of the petition and that each signature appended to the paper is the genuine signature of the person whose name it purports to be, and was made in the presence of the affiant." (Emphasis added.)

We agree with respondents that the charter requires circulator affidavits for signatures on a referendum petition to be considered prima facie sufficient. We do so because, contrary to relators' argument, the right to supplement under Section 5, Article XI is not unrestricted. Rather, Section 5 permits supplementation of referendum petitions reflecting the necessary number of signatures only by " additional signatures of qualified electors signed in the manner required in Section 3 * * *." (Emphasis added.) Section 5, therefore, provides no authority for supplementing a petition with circulator affidavits erroneously omitted, or indeed with anything other than additional signatures in accordance with Section 3. See, also, Section 6, Article XI, which directs the clerk to certify to the council any petition that is found sufficient or that is "rendered sufficient by further signatures as permitted in this article * * *."

The failure of Section 5 to expressly allow for supplementation by independent circulator affidavits is significant. It means that the petition signatures must initially be accompanied by the requisite number of circulator affidavits because the absence of such affidavits cannot be corrected later. Accordingly, we hold that before a right to supplement a referendum petition attaches under Section 5, the petition filed initially must include appropriate circulator affidavits.

Here, relators tried to do more than just supplement their part-petitions with additional signatures of qualified electors; they also attempted to submit circulator affidavits erroneously omitted from their initial part-petitions. Nothing in the Lakewood Charter permits relators to make this supplement or requires respondents to accept it. Thus, we further hold that respondents have no duty under the charter to determine the sufficiency of relators' part-petitions, as supplemented. Accord State, ex rel. Macko, v. Monzula (1976), 48 Ohio St.2d 35, 2 O.O.3d 129, 356 N.E.2d 493 (writ of mandamus to compel certification of recall petitions to city council denied because circulator affidavits did not strictly comply with statutory requirements). See, also, State, ex rel. Janasik, v. Sarosy (1967), 12 Ohio St.2d 5, 41 O.O.2d 3, 230 N.E.2d 346, and State, ex rel. Stillo, v. Gwin (1969), 18 Ohio St.2d 66, 47 O.O.2d 189, 247 N.E.2d 481 (writs of prohibition issued to prevent placement of referendums on ballot because circulator affidavits either were statutorily defective or were omitted altogether).

Relators could not establish the duty alleged even if they had relied on State, ex rel. Buchanon, v. Stillman (1967), 12 Ohio St.2d 13, 41 O.O.2d 151, 231 N.E.2d 61, and had argued that circulator affidavits were superfluous once the board of elections checked the signatures on their part-petitions. In Buchanon, the relator sought to prevent the board of elections from placing certain local option issues on the ballot. We acknowledged that where the circulator affidavits in the petition fail to state the circulator's belief that the signers were "qualified to sign," the board may reject the petition for that reason alone. However, we held that if the board ignores the deficiency and proceeds to determine that a sufficient number of the signers were so qualified, the statement of the circulator to that effect no longer serves any purpose, and its omission is no longer a defect.
We reasoned in Buchanon that the question of whether the signers were "qualified to sign" could be independently determined by the board from its own records, and once it does so, the lack of a circulator's statement to that effect becomes a mere technicality. However, we emphasized in Buchanon that the omission of other required statements from the circulator's affidavit would remain fatal where the board could not determine the omitted information from its own records, such as the fact that the circulator witnessed the affixing of each signature.
Buchanon is distinguishable from this case because Section 3, Article XI of the Lakewood City Charter requires the circulator to attest that each signature was made in his presence, and this information was not available to the board of elections. See, also, Janasik, supra.

Estoppel and Substantial Compliance

Arguing that the deficiency of their initial part-petitions was caused by the noncomplying petition forms suggested by respondents and the board of elections, relators also contend, in effect, that respondents are estopped from asserting the lack of attached circulator affidavits. We must disagree.

This court has routinely held that estoppel does not apply against election officials in the exercise of government functions. See, e.g., State, ex rel. Svete, v. Geauga Cty. Bd. of Elections (1965), 4 Ohio St.2d 16, 33 O.O.2d 139, 212 N.E.2d 420, and State, ex rel. Brettell, v. Canestraro (1987), 32 Ohio St.3d 190, 513 N.E.2d 242 (mistaken advice of election official as to validity of instrument does not estop board of elections from declaring instrument invalid); accord Chevalier v. Brown (1985), 17 Ohio St.3d 61, 17 OBR 64, 477 N.E.2d 623.

State, ex rel. Humble, v. Brown (1977), 52 Ohio St.2d 9, 6 O.O.3d 77, 368 N.E.2d 294, is particularly controlling in this regard. In Humble, circulator affidavits were required by law for signatures on an initiative petition. However, there, as here, the relator used petition forms obtained from the board of elections, and those forms contained only circulator statements. We denied a writ of mandamus to compel an initiative election because the board's error in providing noncomplying forms did not exempt relator from the long-established rule requiring strict compliance with Ohio election laws. Id. at 11, 6 O.O.3d at 78, 368 N.E.2d at 296, citing State, ex rel. Van Aken, v. Duffy (1964), 176 Ohio St. 105, 27 O.O.2d 1, 198 N.E.2d 76. See, also, State, ex rel. Senn, v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 174, 5 O.O.3d 381, 382, 367 N.E.2d 879, 880.

The preceding authority supports the conclusion that respondents are not estopped from asserting the absence of circulator affidavits in relators' initial part-petitions. Relators have cited no authority that allows us to reach another result. Accordingly, we cannot apply estoppel here to find respondents under a duty to act as requested.

Relators also argue briefly that the circulator statements on their part-petitions substantially comply with the charter requirement of a circulator affidavit. In State, ex rel. Evergreen Co., v. Franklin Cty. Bd. of Elections (1976), 48 Ohio St.2d 29, 2 O.O.3d 126, 356 N.E.2d 716, however, we held that an unsworn statement is no substitute for a circulator affidavit. Accord Humble, supra, 52 Ohio St.2d at 10, 6 O.O.3d at 78, 368 N.E.2d at 296. Thus, substantial compliance also will not justify the relief relators seek.

As relators are unable to satisfy the test for a writ of mandamus, and no issues of material fact remain in dispute, respondents are entitled to judgment as a matter of law. Therefore, respondents' motion for summary judgment is granted, and the writ of mandamus is denied.

Motion granted and writ denied.

MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.


Summaries of

State ex rel. Van de Kerkhoff v. Dowling

Supreme Court of Ohio
Jun 26, 1991
61 Ohio St. 3d 55 (Ohio 1991)
Case details for

State ex rel. Van de Kerkhoff v. Dowling

Case Details

Full title:THE STATE, EX REL. VAN DE KERKHOFF ET AL., v. DOWLING, CLERK, ET AL

Court:Supreme Court of Ohio

Date published: Jun 26, 1991

Citations

61 Ohio St. 3d 55 (Ohio 1991)
572 N.E.2d 653

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