State ex rel. Sanduskians for Sandusky v. Sandusky , 2022 Ohio 3362 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Sanduskians for Sandusky v. Sandusky, Slip Opinion No. 2022-Ohio-3362.]
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
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SLIP OPINION NO. 2022-OHIO-3362THE STATE EX REL . SANDUSKIANS FOR SANDUSKY ET AL . v. THE CITY OF
SANDUSKY ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Sanduskians for Sandusky v. Sandusky,
Slip Opinion No. 2022-Ohio-3362.]
Elections—Mandamus—Writ of mandamus sought to compel city commission to
certify charter-amendment petition for a vote at the November 8, 2022
general election—R.C. 731.31 is inapplicable to municipal charter-
amendment petition unless municipal charter incorporates R.C. 731.31 into
city’s charter-amendment process—Because city has not incorporated R.C.
731.31 into its charter-amendment process, city commission and city law
director erred in finding petition invalid for failing to comply with R.C.
731.31’s full-text requirement—City commission ordered to enact
ordinance providing for submission of proposed charter amendment to
electors and to submit matter to a special election within time parameters
set out in city charter and Ohio Constitution—Limited writ granted.
(No. 2022-1103—Submitted September 19, 2022—Decided September 23, 2022.)
IN MANDAMUS.
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Per Curiam.
{¶ 1} Relators, Sanduskians for Sandusky and Craig McCloskey II, ask for
a writ of mandamus ordering respondents—the city of Sandusky, Sandusky Law
Director Brendan Heil, and Sandusky City Commission members Richard Brady,
Dennis Murray, Blake Harris, Mike Meinzer, Steve Poggiali, Wes Poole, and Dave
Waddington (collectively “city respondents”)—to certify a charter-amendment
petition for a vote by Sandusky’s electors at the November 8, 2022 general election.
Relators also ask for a writ of mandamus ordering respondent Erie County Board
of Elections to place the proposed charter amendment on the November 8, 2022
general-election ballot. Finally, relators seek an award of attorney fees under R.C.
733.61 because McCloskey is a taxpayer who initiated this action as a taxpayer
under R.C. 733.59 after Heil refused to do so.
{¶ 2} We grant a limited writ ordering the city-commission members to
enact an ordinance providing for submission of the proposed charter amendment to
Sandusky’s electors at a special election to take place within the time parameters
set forth in Section 82 of the Sandusky Charter and Article XVIII, Section 8 of the
Ohio Constitution. This limited writ is conditioned on the Erie County Board of
Elections certifying that the charter-amendment petition contains enough valid
signatures to qualify for submission to the electors under Section 82 of the
Sandusky Charter and Article XVIII, Section 9 of the Ohio Constitution. We deny
relators’ request for attorney fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 3} On or about August 3, 2022, Sanduskians for Sandusky filed with the
city a charter-amendment petition containing more than 600 signatures. The
petition proposed to amend Section 25 of the city’s charter. The full text of the
proposed amendment was printed on each part-petition:
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Be it Ordained by the Electors of the City of Sandusky.
An Amendment to Charter Section 25-Expenditures.
Amending Section 25 Paragraph 4 to read as follows:
Real property owned by the City, with the exception of existing or
future park property owned by the City, may be sold or leased by
the City with competitive bidding. Transparent negotiations for sale
or lease of City property, by the City Manager, are required.
The City Manager and City Commission shall not approve the sale,
lease or private development on existing or future park property, in
whole or part thereof, including park property under lease during the
circulating of this Charter Amendment process, without approval by
a majority of the electors of the City voting on the question at a
general election. This Charter Amendment shall take effect and be
in force from and after the earliest date allowed by law.
Sandusky Charter, Section 25 currently states:
S 25 EXPENDITURES.
Until otherwise provided by the City Commission, the City
Manager shall act as the purchasing agent for the City, by whom all
purchases shall be made, and who shall approve all vouchers for the
payment of the same. Such purchasing agent shall also conduct all
sales of personal property which the City Commission may
authorize to be sold as having become unnecessary or unfit for the
City’s use.
All purchases and sales shall conform to such regulations as
the City may from time to time prescribe; but in either case, if an
amount in excess of $1,000 is involved, competitive quotations shall
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be obtained. When it is anticipated an expenditure will exceed
$10,000, formal competitive bidding shall be required; no such
expenditure shall be split up for the sole purpose of evading this
requirement.
When purchases or sales are made on joint accounts of
separate departments, the purchasing agent shall apportion the
charge or credit to each department. He or she shall see to the
delivery of supplies to each department, and take, and retain the
receipt of each department therefor.
Real property owned by the City may be sold or leased by
the City without the need for competitive bids. Negotiations for the
sale or lease of City property are permissible, where deemed
appropriate by the City Manager, for the benefit of the City.
Competitive bidding shall not be required where the
purchase consists of supplies, a replacement part or supplemental
parts, or services for products, equipment or property owned or
leased by the City and the only source of supply for such supplies,
parts or services is limited to a single provider.
When an expenditure, other than the compensation of
persons employed by the City, exceeds $10,000, such expenditure
shall first be authorized and directed by ordinance or resolution of
the City Commission, and no contract involving an expenditure in
excess of such sum shall be made or awarded, except upon approval
of the City Commission.
(Capitalization and underlining sic.)
{¶ 4} Upon receipt of the charter-amendment petition, city law director Heil
determined that it did not include a full and correct copy of the title or text of
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Section 25 of the city charter. Heil further determined that the petition would be
misleading to the city’s electors if placed on the ballot because it offers no guidance
on what, if any, portions of existing Section 25 would be repealed or replaced.
{¶ 5} On August 8, the city commission discussed the petition at its
regularly scheduled meeting.1 Heil advised the commission that the petition did
not satisfy the requirements of Ohio law. The commission did not certify the
petition to the Erie County Board of Elections for placement on the general-election
ballot.
{¶ 6} Despite his advice to the commission, Heil forwarded the petition to
the board of elections solely for verification of signatures. The board of elections
verified that the petition contains 466 valid signatures, which relators say is enough
to qualify the proposed charter amendment for placement on the ballot.
{¶ 7} On August 24, McCloskey delivered a letter to Heil, requesting under
R.C. 733.58 and 733.59 that Heil commence a mandamus action to compel the city
commissioners to enact an ordinance to place the proposed charter amendment on
the November 8 ballot.2 Heil informed McCloskey’s counsel that he would not
initiate a mandamus action against the city commission.
{¶ 8} Relators commenced this expedited election action on September 8.
They ask this court to issue a writ of mandamus (1) ordering city respondents to
“forthwith certify” the charter-amendment petition so that the proposed amendment
can be submitted to the electors of the city and (2) ordering the board of elections
to place the proposed charter amendment on the November 8 general-election
ballot. Relators also demand an award of attorney fees under R.C. 733.61. We set
1. Sandusky’s legislative body is called the “City Commission.” Sandusky Charter, Section 3.
2. R.C. 733.58 states, “In case an officer or board of a municipal corporation fails to perform any
duty expressly enjoined by law or ordinance, the village solicitor or city director of law shall apply
to a court of competent jurisdiction for a writ of mandamus to compel the performance of the duty.”
If a city law director fails to make the application requested, R.C. 733.59 authorizes a taxpayer to
“institute suit in his own name, on behalf of the municipal corporation.”
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a schedule for submission of evidence and merit briefs that was more accelerated
than the schedule set forth in S.Ct.Prac.R. 12.08. __ Ohio St.3d __, 2022-Ohio-
3153, __ N.E.3d __. Relators and city respondents submitted evidence and merit
briefs; the board of elections filed a notice of appearance of counsel but filed neither
an answer to the complaint nor a merit brief. City respondents have also filed a
motion to strike portions of relators’ reply brief.
II. OVERVIEW OF THE CHARTER-AMENDMENT PROCESS
{¶ 9} As authorized by Article XVIII, Section 7 of the Ohio Constitution,
Sandusky has adopted a charter to govern the exercise of local self-government
powers. Article XVIII, Section 9, which governs the charter-amendment process,
provides:
Amendments to any charter framed and adopted as herein provided
may be submitted to the electors of a municipality by a two-thirds
vote of the legislative authority thereof, and, upon petitions signed
by ten per centum of the electors of the municipality setting forth
any such proposed amendment, shall be submitted by such
legislative authority. The submission of proposed amendments to
the electors shall be governed by the requirements of section 8 as to
the submission of the question of choosing a charter commission;
and copies of proposed amendments may be mailed to the electors
as hereinbefore provided for copies of a proposed charter, or
pursuant to laws passed by the general assembly, notice of proposed
amendments may be given by newspaper advertising. If any such
amendment is approved by a majority of the electors voting thereon,
it shall become a part of the charter of the municipality. A copy of
said charter or any amendment thereto shall be certified to the
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secretary of state, within thirty days after adoption by a referendum
vote.
{¶ 10} If a petition proposing a charter amendment contains enough valid
signatures, the municipal legislature “must ‘forthwith’ provide by ordinance for the
submission of the proposed amendment to the electors.” State ex rel. Commt. for
Charter Amendment Petition v. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097,
18 N.E.3d 426, ¶ 3-4, quoting Article XVIII, Section 8, Ohio Constitution. And
under Article XVIII, Section 8 of the Ohio Constitution, “[t]he ordinance must
require that the matter be submitted at the next regular municipal election if one
will occur no more than 120 days, and no less than 60 days, after passage of the
ordinance.” Maple Hts. at ¶ 5. If there is no election within that time frame, the
municipal legislature must submit the question to the electors at a special election
occurring within the same time frame. Id.{¶ 11} Sandusky also has a charter-amendment provision in its charter,
which is similar to Article XVIII, Section 9 of the Ohio Constitution and which
contains the same time frame as Section 8 for submitting a proposed charter
amendment to the voters. Sandusky’s charter-amendment provision provides:
Amendments to this Charter may be submitted to the electors
of the City by a 2/3 vote of the City Commission, and, upon petition
signed by 10% of the electors of the City setting forth any such
proposed amendment, shall be submitted by such City Commission.
The ordinance providing for the submission of any such amendment
shall require that it be submitted to the electors at the next regular
municipal election if one shall occur not less than 60 nor more than
120 days after its passage; otherwise it shall provide for the
submission of the amendment at a special election to be called and
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held within the time aforesaid. Not less than 30 days prior to such
election the Clerk of the City Commission shall mail a copy of the
proposed amendment to each elector whose name appears upon the
poll or registration books of the last regular municipal or general
election. If such proposed amendment is approved by a majority of
the electors voting thereon it shall become a part of the Charter at
the time fixed therein.
Sandusky Charter, Section 82.
{¶ 12} To the extent the amendment procedures in Sandusky’s charter
conflict with the Ohio Constitution, the constitutional provisions will prevail. State
ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake, 97
Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 30.
III. MOTION TO STRIKE
{¶ 13} City respondents have filed a motion to strike those portions of
relators’ reply brief that refer to additional evidence that was not timely submitted.
Relators appear to use this additional evidence to show that city respondents have
not applied R.C. 731.28 to 731.41—Ohio’s general statutes governing municipal
initiative and referendum petitions—to assess the validity of previous charter-
amendment petitions. Rather, relators contend that city respondents have evaluated
charter-amendment petitions under only Section 82 of the Sandusky Charter and
Article XVIII, Section 9 of the Ohio Constitution.
{¶ 14} We grant the motion to strike and, therefore, disregard the additional
evidence referred to by relators in their reply brief. In an extraordinary-writ
proceeding, this court’s schedule for the presentation of evidence controls the
timeliness of evidentiary submissions. See State ex rel. Gil-Llamas v. Hardin, 164
Ohio St.3d 364, 2021-Ohio-1508, 172 N.E.3d 998, ¶ 14. If relators wished to
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submit rebuttal evidence, they should have filed a motion for leave to do so. See
id.IV. ANALYSIS
{¶ 15} To be entitled to a writ of mandamus, relators must establish by clear
and convincing evidence that (1) they have a clear legal right to the requested relief,
(2) the respondents are under a clear legal duty to perform the requested acts, and
(3) there is no adequate remedy in the ordinary course of the law. State ex rel.
Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13.
Because the November 8 election is less than two months away, relators lack an
adequate remedy in the ordinary course of the law. See State ex rel. Finkbeiner v.
Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573,
¶ 18-19. The remaining elements of the analysis require this court to determine
whether respondents engaged in fraud, corruption, or an abuse of discretion or acted
in clear disregard of applicable law. See State ex rel. Husted v. Brunner, 123 Ohio
St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9.
{¶ 16} Relators do not allege fraud or corruption in this case. Thus, the
dispositive issue is whether respondents abused their discretion or clearly
disregarded applicable law.
A. Does R.C. 731.31 Apply to a Petition to Amend the Sandusky Charter?
{¶ 17} A municipal legislature need not submit a proposed charter
amendment to its electors “unless satisfied of the sufficiency of the petitions and
that all statutory requirements are fairly met.” Morris v. City Council of
Macedonia, 71 Ohio St.3d 52, 55, 641 N.E.2d 1075 (1994). A municipal
legislature’s inquiry is “limited to matters of form, not substance.” Id.{¶ 18} In this case, city respondents argue that relators’ petition was
insufficient as to form because it did not contain the full text of the proposed
amendment to be submitted to the city’s electors. In support of this position, city
respondents cite R.C. 731.31, which states:
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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.
{¶ 19} Relators do not contend that their petition complies with R.C.
731.31. Rather, relators argue that R.C. 731.31 does not apply at all to their
petition.
1. Estoppel Does Not Apply
{¶ 20} As an initial matter, city respondents argue that relators should be
estopped from arguing that R.C. 731.31 does not apply to the charter-amendment
petition. City respondents say that because relators induced them to evaluate the
petition under R.C. 731.28 through 731.41 (Ohio’s general laws applicable to
initiative and referendum petitions), relators cannot now complain that these
statutes do not apply to the petition. We reject city respondents’ estoppel
arguments.
{¶ 21} For judicial estoppel to apply, the argument in question must be
inconsistent with one successfully and unequivocally asserted by the same party in
a prior court proceeding. See State ex rel. Motor Carrier Serv., Inc. v. Rankin, 135
Ohio St.3d 395, 2013-Ohio-1505, 987 N.E.2d 670, ¶ 33; see also Greer-Burger v.
Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 25. Here, even
if we were to accept the premise that relators took the position in their
communications with the city that the general municipal initiative and referendum
statutes applied to their petition, they did not raise the argument in a court
proceeding. Accordingly, the doctrine is inapplicable.
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{¶ 22} “Equitable estoppel prevents relief when one party induces another
to believe certain facts exist and the other party changes his position in reasonable
reliance on those facts to his detriment.” State ex rel. Chavis v. Sycamore City
School Dist. Bd. of Edn., 71 Ohio St.3d 26, 34, 641 N.E.2d 188 (1994). “[E]quitable
estoppel generally requires actual or constructive fraud.” Id.; see also Glidden Co.
v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, 861 N.E.2d
109, ¶ 53 (“Equitable estoppel does not apply when there is no actual or
constructive fraud and no detrimental reliance”). City respondents cite no evidence
of fraud, and they cite no case standing for the proposition that relators’ legal
argument is a proper predicate for equitable estoppel. To the contrary, equitable
estoppel generally depends upon one party inducing another to believe certain facts
exist, thereby leading to reasonable reliance on the part of the other party. Chavis
at 34.
{¶ 23} Accordingly, relators are not estopped from arguing that the charter-
amendment petition need not comply with R.C. 731.31.
2. R.C. 731.31 Does Not Apply to the Charter-Amendment Petition
{¶ 24} Relators argue that Section 82 of the Sandusky Charter governs the
charter-amendment process and provides the sole basis for reviewing a charter-
amendment petition’s validity. And because the Sandusky Charter does not contain
any provisions that require charter-amendment petitions to meet a requirement akin
to R.C. 731.31’s full-text requirement, they contend that Section 82 and R.C.
731.31 conflict and the Sandusky Charter must prevail. See State ex rel. Hackworth
v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 31 (pertinent
election statutes not in conflict with the Ohio Constitution or city charter apply to
charter-amendment petitions).
{¶ 25} For their part, city respondents emphasize that Section 82 of the
Sandusky Charter “does not contain a comprehensive set of provisions regulating
what must be included in a petition for a Charter amendment.” To fill those gaps,
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city respondents argue that we must look to Sections 65 and 75 of the Sandusky
Charter. Section 65, under the “Initiative and Referendum” title of the Sandusky
Charter, states:
S 65 STATE LAWS TO APPLY.
The provisions for the initiative and referendum in municipal
corporations, now in force or hereafter enacted, as prescribed by the
general laws of the State, shall govern.
(Capitalization and underlining sic.)
{¶ 26} Later in the Sandusky Charter, under the title “Miscellaneous
Provisions,” Section 75 provides:
S 75 GENERAL LAWS TO APPLY.
All general laws of the State applicable to municipal
corporations, now or hereafter enacted, and which are not in conflict
with the provisions of this Charter, or with ordinances or resolutions
hereafter enacted [by] the City Commission, shall be applicable to
this City; provided that nothing contained in this Charter shall be
construed as limiting the power of the City Commission to enact any
ordinance or resolution not in conflict with the constitution of the
State or with the express provisions of this Charter.
(Capitalization and underlining sic.)
{¶ 27} City respondents argue that these provisions, read together, intend
for general laws of the state to apply to the initiative and referendum process and
to the charter-amendment process. City respondents also cite this court’s decision
in Hackworth, 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, in which we
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denied a writ of mandamus to compel city officials to submit a proposed charter
amendment to the ballot when the text of the charter-amendment petition did not
comply with R.C. 731.31. See id. at ¶ 33-35. City respondents contend that
Hackworth likewise forecloses the issuance of a writ of mandamus in this case.
{¶ 28} But Sandusky Charter Section 65 does not support city respondents’
argument, because that provision incorporates “provisions for the initiative and
referendum in municipal corporations.” Though a charter amendment can be
initiated by a petition signed by 10 percent of a municipality’s electors, see Article
XVIII, Section 9, Ohio Constitution, a charter amendment is not an “initiative.”
Indeed, R.C. 731.28 describes initiatives as “[o]rdinances and other measures
providing for the exercise of any powers of government.” We have observed that
this definition does not describe a charter amendment. See State ex rel. Ebersole v.
Powell City Council, 141 Ohio St.3d 17, 2014-Ohio-4283, 21 N.E.3d 274, ¶ 11.
{¶ 29} In Ebersole, we considered a charter-amendment petition that a city
council voted not to approve for submission to the ballot because it deemed the
proposed amendment to be “an unlawful delegation of legislative authority into
private hands.” Id. at ¶ 4. The city charter at issue in that case vested the city
council with independent authority to assess the validity and sufficiency of
initiative and referendum petitions. It was argued in Ebersole that the same
authority applicable to initiative and referendum petitions allowed the council to
assess the validity and sufficiency of a charter-amendment petition. Id. at ¶ 11. We
rejected that interpretation. We noted that the city charter’s provisions governing
charter amendments contained no language similar to the provisions governing
initiatives and referendums. Id. at ¶ 10. Instead, the charter “state[d] that ‘[a]ny
section of this Charter may be amended as provided in Article XVIII, Section 9 of
the Ohio Constitution, by the submission of the proposed amendment or
amendments to the electors of the City.’ ” (Second set of brackets sic.) Id. We
rejected the argument that the charter-amendment petition was governed by the
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provisions of the city charter governing initiatives because, just as in R.C. 731.28,
the city charter at issue described an initiative as “ ‘[o]rdinances and other measures
providing for the exercise of any powers of government.’ ” Id. at ¶ 11. We held
that a charter amendment “is not an ordinance or ‘measure[] providing for the
exercise of [a] power[] of government.’ ” (Brackets sic.) Id. Similarly, here, we
find that the general statutes governing initiatives and referendums do not apply to
the charter-amendment process set forth in the Sandusky Charter.
{¶ 30} Nor does Section 75 of the Sandusky Charter justify city
respondents’ application of R.C. 731.31 to the charter-amendment petition. Section
75 states that “[a]ll general laws of the State applicable to municipal corporations
* * * which are not in conflict with the provisions of this Charter” apply to
Sandusky. This provision does not impose R.C. 731.31’s requirements onto the
charter-amendment process because, as noted above, R.C. 731.31 is a general law
applicable to municipal initiatives and referendums.
{¶ 31} We acknowledge that in prior cases we have found that R.C. 731.31
had to be satisfied before a city legislative body had a duty to submit a charter
amendment to the city’s electors. See, e.g., Hackworth, 97 Ohio St.3d 110, 2002-
Ohio-5334, 776 N.E.2d 1050, at ¶ 31; Morris, 71 Ohio St.3d at 55, 641 N.E.2d
1075; State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 506, 756 N.E.2d 1228(2001). But in Ebersole, 141 Ohio St.3d 17, 2014-Ohio-4283, 21 N.E.3d 274, we
recognized that the process for submitting a charter amendment to the ballot must
not be conflated with the process for an initiative. Id. at ¶ 11. R.C. 731.31, which
by its terms applies only to initiative and referendum petitions, is inapplicable to a
municipal charter-amendment petition unless something in the municipal charter
incorporates the statute into the charter-amendment process. Because the Sandusky
Charter contains no provision that incorporates the full-text requirement of R.C.
731.31 into the charter-amendment process, city respondents erred in finding the
petition invalid.
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{¶ 32} For these reasons, we grant a limited writ and compel respondent
city-commission members to pass an ordinance to submit the proposed charter
amendment to an election as set forth in Article XVIII, Section 8 of the Ohio
Constitution and Section 82 of the Sandusky Charter, provided that the charter-
amendment petition has enough valid signatures to qualify for the ballot.3
B. There is No Right to Placement on the November 8, 2022 Ballot
{¶ 33} Relators ask specifically for city respondents and the board of
elections to take the necessary steps to place their proposed charter amendment on
the November 8, 2022 election ballot. The limited writ we grant today does not
order this relief, because relators have no right under the Ohio Constitution or the
Sandusky Charter to have the proposed amendment placed on this year’s general-
election ballot.
{¶ 34} The Sandusky Charter calls for a proposed amendment to be
submitted to the electors “at the next regular municipal election” occurring between
60 and 120 days from the city commission’s passage of an ordinance providing for
the submission. (Emphasis added.) Sandusky Charter, Section 82. Article XVIII,
Section 8 of the Ohio Constitution likewise provides for the proposed amendment
to “be submitted to the electors at the next regular municipal election if one shall
occur not less than sixty nor more than one hundred and twenty days” after passage
of the ordinance to submit it. (Emphasis added.) The term “regular municipal
election” is defined as an election occurring in November of an odd numbered year.
Sandusky Charter, Section 44; see also R.C. 3501.01(B) (same). Thus, the next
regular municipal election is in November 2023. Since there will be no “regular
3. The limited writ we grant is conditional because it is unclear on the record before us that the
petition has enough valid signatures to qualify for submission to the electors. The board of elections
found that relators’ petition contained 466 valid signatures. Relators contend that 323 valid
signatures are needed for the proposed charter amendment to qualify for the ballot. But the evidence
cited for this assertion—the board of elections’ report of its signature review—does not list the
number of signatures required for the proposed amendment to qualify for the ballot.
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municipal election” within 60 to 120 days of the city commission’s passage of the
ordinance to submit the charter-amendment proposal to Sandusky’s electors, the
city commission must submit the issue to the electors at a special election within
those time parameters. See Sandusky Charter, Section 82. Although the city
commission could have submitted the proposed amendment to the electors at the
November 8 general election, if it had passed an ordinance doing so on or before
September 9, there is nothing in Article XVIII, Section 8 of the Ohio Constitution
or Section 82 of the Sandusky Charter that required the city commission to do so.
{¶ 35} Accordingly, relators are not entitled to an order compelling
placement of the charter-amendment proposal on the November 8 ballot. Provided
that the petition has enough valid signatures to qualify for submission to
Sandusky’s electors, relators are instead entitled to an order compelling the city
commissioners to call a special election within the time parameters stated in Section
82 of the Sandusky Charter and Article XVIII, Section 8 of the Ohio Constitution.
C. Attorney Fees
{¶ 36} Relators seek an award of attorney fees under R.C. 733.59. Under
that statute, if a city law director fails, upon written request of a taxpayer, to apply
for a writ of mandamus under R.C. 733.58 to enforce “any duty expressly enjoined
by law or ordinance,” the taxpayer “may institute suit in his own name, on behalf
of the municipal corporation” (as was done here by relator McCloskey), see R.C.
733.59. And R.C. 733.61 allows a court, in its discretion, to award reasonable
attorney fees to a successful taxpayer. See Pennington, 166 Ohio St.3d 241, 2021-
Ohio-3134, 185 N.E.3d 41, at ¶ 34.
{¶ 37} We deny attorney fees in this case. An award of fees under R.C.
733.61 is generally warranted only when a respondent’s actions “were not
reasonably supported by law.” Pennington at ¶ 35; see also Commt. for the Charter
Amendment, City Trash Collection, 97 Ohio St.3d 100, 2002-Ohio-5302, 776
N.E.2d 1041, at ¶ 46. Because of our precedent stating that R.C. 731.31 is
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applicable to a charter-amendment petition, city respondents’ position that the
petition was deficient was well supported by this court’s case law. An attorney-fee
award is therefore inappropriate. See Pennington at ¶ 35.
V. CONCLUSION
{¶ 38} R.C. 731.31 does not apply to relators’ petition to amend Section 25
of the Sandusky Charter. We therefore grant a limited writ of mandamus ordering
the Sandusky City Commission members to enact forthwith an ordinance providing
for the submission of the proposed charter amendment to the electors and to submit
the matter to a special election occurring within the time parameters of Section 82
of the Sandusky Charter and Article XVIII, Section 8 of the Ohio Constitution,
provided that the Erie County Board of Elections certifies that the petition has
enough valid signatures to qualify for submission.
Limited writ granted.
O’CONNOR, C.J., and FISCHER, DEWINE, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
DONNELLY, J., concurs in part and dissents in part, with an opinion joined
by BRUNNER, J.
__________________
DONNELLY, J., concurring in part and dissenting in part.
{¶ 39} I concur in the court’s decision to grant the motion to strike portions
of relators’ reply brief and in the court’s judgment denying relators’ request for an
award of attorney fees. I also concur in the court’s judgment to the extent that it
denies relators’ request for a writ of mandamus compelling placement of the
proposed charter amendment on this year’s general-election ballot.
{¶ 40} I write separately because I disagree with the court’s judgment
granting a writ of mandamus ordering the Sandusky City Commission “to enact
forthwith an ordinance providing for the submission of the proposed charter
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SUPREME COURT OF OHIO
amendment to the electors and to submit the matter to a special election.” Majority
opinion, ¶ 38.
{¶ 41} In State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-
5334, 776 N.E.2d 1050, ¶ 32, we stated:
R.C. 731.31 provides that “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.” This requirement applies to
charter amendment petitions. [State ex rel.] Becker [v.
Eastlake], 93 Ohio St.3d [502,] 506, 756 N.E.2d 1228[(2002)]. “[T]he purpose of this requirement is to fairly and
substantially present the issue to electors in order to avoid
misleading them.” Stutzman v. Madison Cty. Bd. of Elections, 93
Ohio St.3d 511, 514-515, 757 N.E.2d 297 (2001); see also Christy
v. Summit Cty. Bd. of Elections, 77 Ohio St.3d 35, 38, 671 N.E.2d 1(1996) (“Omitting the title and/or text of a proposed ordinance is a
fatal defect because it interferes with a petition’s ability to fairly and
substantially present the issue and might mislead electors”).
(Fifth set of brackets sic.)
{¶ 42} There is nothing in the court’s opinion that convinces me that
Hackworth was wrongly decided. The opinion “acknowledge[s]” Hackworth,
majority opinion at ¶ 31, and then effectively overrules it, relying on State ex rel.
Ebersole v. City Council of Powell, 149 Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d
1245, a case that does not discuss Hackworth at all, let alone the lodestar of
Hackworth (i.e., the applicability of R.C. 731.31 to charter-amendment petitions).
Because the charter-amendment petition here does not contain “a full and correct
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January Term, 2022
copy of the title and text” of the proposed charter amendment, I would deny in full
relators’ request for a writ of mandamus.
BRUNNER, J., concurs in the foregoing opinion.
__________________
Loretta Riddle, for relators.
Walter Haverfield, L.L.P., Benjamin Grant Chojnacki, and Lisa Mack; and
Brendan Heil, Sandusky Law Director, for respondents City of Sandusky, Brendan
Heil, Richard Brady, Dennis Murray, Blake Harris, Mike Meinzer, Steve Poggiali,
Wes Poole, and Dave Waddington.
________________________
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