Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act (Slip Opinion) , 147 Ohio St. 3d 42 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio
Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, Slip Opinion No. 2016-Ohio-3038.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-3038OHIO MANUFACTURERS’ ASSOCIATION ET AL. v. OHIOANS FOR DRUG PRICE
RELIEF ACT ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief
Act, Slip Opinion No. 2016-Ohio-3038.]
Elections—Challenge under Article II, Section 1g, Ohio Constitution—Motion for
judgment on the pleadings denied.
(No. 2016-0313—Submitted April 19, 2016—Decided May 18, 2016.)
CHALLENGE under Article II, Section 1g of the Ohio Constitution.
________________
Per Curiam.
{¶ 1} This is an original action pursuant to Article II, Section 1g of the Ohio
Constitution, challenging the petition signatures submitted in support of the “Ohio
Drug Price Relief Act.” The relators are the Ohio Manufacturers’ Association,
Ohio Chamber of Commerce, Pharmaceutical Research and Manufacturers of
America, Keith A. Lake, and Ryan R. Augsburger (collectively, “OMA”).
SUPREME COURT OF OHIO
{¶ 2} Respondents, William S. Booth, Daniel L. Darland, Tracy L. Jones,
and Latonya D. Thurman (collectively, “Booth”), who comprise the committee
responsible for the Ohio Drug Price Relief Act petition, have filed a Civ.R. 12(C)
motion for judgment on the pleadings, arguing that a challenge to the specific part-
petitions at issue does not fall within the scope of our original jurisdiction conferred
by Section 1g. Alternatively, Booth asks for judgment on the pleadings as to two
of the four claims in the challenge.
{¶ 3} Respondent Jon Husted, Ohio Secretary of State, has filed a motion
for leave to file a response to Booth’s motion, along with a proposed memorandum.
We grant the motion for leave and hereby deem Husted’s memorandum filed
instanter.
{¶ 4} Upon consideration of the motion for judgment on the pleadings and
the filings of the parties, we reject Booth’s jurisdictional arguments, and therefore
we will not dismiss the challenge in its entirety. We also deny the motion’s
alternative arguments for partial judgment on the pleadings.
Background
{¶ 5} Article II, Section 1b of the Ohio Constitution describes a two-step
initiative-petition process, by which citizens may propose the passage of a statute.
The process begins with the circulation of a petition asking the General Assembly
to enact the proposed statute. Section 1b mandates that the petition be submitted to
the secretary of state and verified not less than ten days before the commencement
of a legislative session. Section 1b further provides that once the sufficiency of the
signatures has been confirmed, the secretary of state must submit the petition to the
General Assembly as soon as it convenes.
{¶ 6} The General Assembly then has four months in which to consider the
proposal. Id. If the General Assembly rejects the proposed statute, enacts the
proposed law in amended form, or allows the four months to elapse without taking
any action, then the backers have 90 days to submit a supplemental petition. Id. If
2
January Term, 2016
the supplemental petition is timely and contains a sufficient number of valid
signatures, then the proposed law shall be placed on the ballot at the next regular
or general election occurring more than 125 days after the supplementary petition
is filed. Id.{¶ 7} This case arises out of an effort to enact “The Ohio Drug Price Relief
Act” as Section 194.01 of the Ohio Revised Code. Booth submitted part-petitions
to the office of the secretary of state on December 22, 2015. On February 4, 2016,
Husted certified that the petition met the constitutional thresholds for transmission
to the General Assembly, in terms of both the absolute number of signatures and
the geographic distribution of signatures.1
{¶ 8} On February 29, 2016, OMA commenced the present action. The
challenge alleged four defects in the part-petitions that OMA claims should cause
them to be discounted in their entirety:
(1) Some petition circulators allegedly listed nonresidential addresses
as their permanent addresses, in violation of R.C. 3501.38(E)(1).
(2) Contractors allegedly crossed out signatures on part-petitions, in
violation of R.C. 3519.06(C).
(3) More than 1,400 part-petitions allegedly bear false circulator
statements because they include fewer signatures than the circulator
attested to witnessing, in violation of R.C. 3501.38(E) and
3519.06(D).
(4) Five ineligible felons allegedly circulated part-petitions, in violation
of R.C. 2961.01(B).
1
To qualify an initiative for the ballot, supporters must submit petitions signed by “three percentum”
of the electors. Article II, Section 1b, Ohio Constitution. In addition, the petitions must contain a
designated number of signatures from electors in at least one-half of Ohio’s 88 counties. Article II,
Section 1g, Ohio Constitution.
3
SUPREME COURT OF OHIO
OMA requested an “order and/or judgment declaring” the part-petitions and
signatures thereon invalid and an “order and/or judgment” that the petition failed
to meet the requirements of Section 1b.
{¶ 9} Booth filed an answer on March 9, 2016, and on March 30, 2016, a
motion for judgment on the pleadings as to all claims based on lack of jurisdiction
or, in the alternative, judgment on the pleadings as to the signature-deletion and
circulator-statement claims. OMA filed a memorandum in opposition on April 6,
2016. On April 11, 2016, Husted filed his motion for leave to respond. Husted’s
proffered memorandum opposes Booth’s arguments for partial judgment on the
pleadings but does not discuss the jurisdictional question.
Standard of Review
{¶ 10} The Ohio Rules of Civil Procedure apply to actions brought pursuant
to Section 1g, except insofar as they conflict with this court’s rules of practice.
S.Ct.Prac.R. 14.01(C)(2). When considering a Civ.R. 12(C) motion for judgment
on the pleadings, a court must construe the material allegations in the complaint,
along with all reasonable inferences to be drawn therefrom, in favor of the
nonmoving party as true. Rayess v. Educational Comm. for Foreign Med.
Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18.
Judgment is proper only if it appears beyond doubt that the nonmoving party can
prove no set of facts entitling it to relief. Id.Jurisdictional Arguments
{¶ 11} OMA’s challenge cites Article II, Section 1g of the Ohio
Constitution as the source of this court’s jurisdiction to hear its petition-signature
challenge. Booth argues that there is no cause of action under Section 1g to
challenge signatures on a Section 1b petition that asks the General Assembly to
adopt a statute.
{¶ 12} Article II, Section 1g provides, “The Ohio supreme court shall have
original, exclusive jurisdiction over all challenges made to petitions and signatures
4
January Term, 2016
upon such petitions under this section.” The language of Section 1g is broad and
unequivocal: it confers upon this court original exclusive jurisdiction to hear all
petition-signature challenges.
{¶ 13} Booth contends that challenges to petitions under Article II, Section
1b proposing a statute for the General Assembly’s adoption do not fall within the
scope of Section 1g. According to Booth, the reference in Section 1g to “[a]ny
initiative, supplementary, or referendum petition” refers only to Article II, Section
1a initiative petitions proposing constitutional amendments, Section 1b
“supplementary” petitions to place proposed statutes on the ballot, and Article II,
Section 1c referendum petitions to prevent statutes from taking effect. But the
constitutional language does not support that interpretation.
{¶ 14} Moreover, a ruling that challenges to Section 1b proposal petitions
are outside the scope of Section 1g would lead to absurd results. Section 1g is the
constitutional authority for a number of fundamental petition rules and
requirements, including the authorization of part-petitions, the requirement of a
circulator’s statement, the requirement that the petition contain the complete title
and text of the proposed law, and the mandates that signers must be electors and
must sign in ink. Article II, Section 1g, Ohio Constitution. To say that Section
1g’s grant of jurisdiction does not encompass a challenge to a Section 1b proposal
petition is to say that none of those requirements apply to such petitions. This
cannot have been the intention of the drafters of Section 1g.
{¶ 15} For these reasons, we hold that we have original jurisdiction over
this petition challenge pursuant to Article II, Section 1g of the Ohio Constitution.
We therefore deny the request for judgment on the pleadings premised on Booth’s
assertion that this court lacks jurisdiction.
Alternative Arguments
{¶ 16} In the alternative, Booth seeks judgment on the pleadings as to two
of OMA’s claims regarding alleged petition defects. Specifically, Booth argues
5
SUPREME COURT OF OHIO
that as a matter of law, the overcounting of signatures and the crossing out of
signatures do not warrant invalidating the entire part-petition and that as to those
claims, it is therefore beyond doubt that OMA can prove no set of facts entitling it
to the relief it seeks, i.e., invalidation of the part-petitions.
False Circulator Statements
{¶ 17} OMA alleges in its challenge that more than 1,400 part-petitions
contain false circulator statements because the circulators claim to have witnessed
more signatures than actually appear on the face of the petition. Each part-petition
had space for a maximum of 28 signatures. But OMA’s challenge alleges that
“even though most part-petitions did not have 28 signatures, circulation companies
* * * instructed the circulators to write the number ‘28’ in the circulator’s
statement.” OMA contends that these part-petitions should be invalidated due to
the overcounting. Booth, on the other hand, argues that part-petitions may never
be rejected on the basis of an overcount, as a matter of law.
{¶ 18} R.C. 3501.38(E)(1) requires petition circulators to indicate the
number of signatures on each petition paper and to sign an attestation that they
personally witnessed each signature. A part-petition is not “properly verified” if it
appears that the circulator’s statement is false in any respect. R.C. 3519.06(D);
State ex rel. Spadafora v. Toledo City Council, 71 Ohio St.3d 546, 549, 644 N.E.2d
393 (1994).2
{¶ 19} The requirement that a circulator state the number of signatures she
or he personally witnessed “is a protection against signatures being added later.”
State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d 233, 234-235, 281
N.E.2d 186 (1972) (board of elections did not abuse its discretion or act contrary to
2
Booth’s motion also gives rise to a dispute among the parties regarding whether the “statement”
referred to throughout R.C. 3519.06 refers only to the circulator’s statement or to the contents of the
entire part-petition. Our resolution of the motion makes it unnecessary to resolve that question at
this stage of the proceedings.
6
January Term, 2016
law in invalidating petition when the space for the circulator to write the total
number of signatures witnessed was left blank). In cases in which the circulator’s
statement slightly undercounts the signatures, this court has ordered the entire part-
petition counted, so long as there is no indication of fraud or material
misrepresentation. State ex rel. Curtis v. Summit Cty. Bd. of Elections, 144 Ohio
St.3d 405, 2015-Ohio-3787, 44 N.E.3d 261, ¶ 8; State ex rel. Schwarz v. Hamilton
Cty. Bd. of Elections, 173 Ohio St. 321, 323, 181 N.E.2d 888 (1962). Only when
the circulator knowingly submits an undercount has the court invalidated the entire
part-petition. See, e.g., Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139,
2005-Ohio-5795, 841 N.E.2d 766, ¶ 13-14.
{¶ 20} In arguing that an overcount petition may never be rejected, Booth
cites State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections,
65 Ohio St.3d 167, 602 N.E.2d 615 (1992). The circulator statements in that case
overstated the number of signatures because circulators had deleted signatures at
the request of the board of elections. Under those facts, the court was willing to
overlook the discrepancy if the error did not promote fraud. Id. at 172-173. But
Citizens for Responsible Taxation did not hold that an overcount can never promote
fraud.
{¶ 21} In this case, OMA alleges that circulators wrote “28” on each part-
petition at the outset and then submitted some part-petitions with fewer than 28
signatures on them. If that is true, there is at least a question as to how many
signatures the circulators actually witnessed, if any. The validity of the part-
petitions therefore depends on specific facts that are in dispute. For this reason,
judgment on the pleadings is not appropriate as to OMA’s circulator-statement
claim.
7
SUPREME COURT OF OHIO
Signature Deletions
{¶ 22} The same analysis informs our resolution of Booth’s other argument
for partial dismissal. OMA alleges that some part-petitions must be invalidated in
their entirety because contractors hired by Booth crossed out some signatures.
{¶ 23} OMA cites R.C. 3501.38(G) and (H) as legal authority to invalidate
these part-petitions. R.C. 3501.38(G) affirmatively authorizes a petition circulator
to strike any signature before filing the petition. R.C. 3501.38(H) authorizes a
petition signer or the signer’s “attorney in fact” to remove the signer’s signature
before the petition is filed. Because the Revised Code expressly authorizes only
these parties to strike signatures, OMA reasons, the Code implicitly forbids anyone
else from deleting a signature.
{¶ 24} We also cannot at this point adopt a blanket rule, as urged by Booth,
that a pattern of unauthorized deletions can never, under any circumstances, call
into question the validity of an entire part-petition. Because resolution of this claim
depends on the facts submitted, we deny partial judgment on the pleadings as to it
as well.3
Conclusion
{¶ 25} For the reasons indicated above, we grant Husted’s motion for leave
and we deny Booth’s motion for judgment on the pleadings.
Motion for judgment on the pleadings denied.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
PFEIFER, J., dissents with an opinion that O’NEILL, J., joins.
O’NEILL, J., dissents with an opinion.
3
Alternatively, OMA suggests that these deletions render the circulator statements false, in violation
of R.C. 3519.06(D). We note that this assertion is contradicted in part by the allegation in OMA’s
own challenge that according to at least some of the circulators involved, “there were no
interlineations or struck-out signatures present when the circulators submitted their part-petitions.”
8
January Term, 2016
_________________
PFEIFER, J., dissenting.
{¶ 26} I would dismiss this case because this court lacks jurisdiction. This
court has original, exclusive jurisdiction over challenges made under Article II,
Section 1g of the Ohio Constitution to petitions and signatures on petitions. Such
challenges are expedited challenges, arising late in the process, subject to the
accelerated calendar set forth in Article II, Section 1g. Article II, Section 1g is the
sole source of jurisdiction cited in relators’ complaint. However, a challenge to a
proposal petition transmitted to the General Assembly pursuant to Article II,
Section 1b cannot be brought under Article II, Section 1g because Article II, Section
1b proposal petitions have their own, incompatible timetable.
{¶ 27} In addition, relators’ complaint seeks a declaratory judgment, which,
as a rule, this court lacks jurisdiction to provide. State ex rel. Ministerial Day Care
Assn. v. Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, 800 N.E.2d 21, ¶ 22.
{¶ 28} Accordingly, I dissent.
O’NEILL, J., concurs in the foregoing opinion.
_________________
O’NEILL, J., dissenting.
{¶ 29} Respectfully, I must dissent. There is no possibility that this matter
is going to be on the November 2016 ballot, and I would suggest that all parties
take a step back, take a deep breath, and consider the chaos that is about to ensue.
{¶ 30} Article II, Section 1b of the Ohio Constitution describes a two-step
initiative process by which citizens may propose the passage of a new statute. The
process begins with the circulation of a petition asking the General Assembly to
enact the proposed statute. Article II, Section 1b of the Ohio Constitution mandates
that such a petition be submitted to the secretary of state and, along with verified
signatures, be forwarded to the General Assembly not less than ten days before the
commencement of a legislative session.
9
SUPREME COURT OF OHIO
{¶ 31} The petitions in this case, properly verified by the secretary of state,
were transmitted to the General Assembly a full month after the session began. It
appears that all parties involved are willing, at this point, to ignore the failure to
meet this small constitutional requirement. I am not.
{¶ 32} It is elementary constitutional law that a lack of jurisdiction can be
raised at any time, even after judgment. It would do a fundamental disservice to
the voters of Ohio to permit this matter to go forward and to cause the expenditure
of millions of dollars, only to be dismissed in August or September. I dissent.
_________________
Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, Nelson M.
Reid, and James P. Schuck, for relators.
McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, and
Derek S. Clinger, for respondents William S. Booth, Daniel L. Darland, Tracy L.
Jones, and Latonya D. Thurman.
Michael DeWine, Attorney General, Steven T. Voigt, Senior Assistant
Attorney General, and Brodi J. Conover, Assistant Attorney General, for
respondent Ohio Secretary of State Jon Husted.
_________________
10