State ex rel. Huebner v. West Jefferson Village Council

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 381

.]




   THE STATE EX REL. HUEBNER, APPELLANT, v. WEST JEFFERSON VILLAGE
                             COUNCIL ET AL., APPELLEES.
[Cite as State ex rel. Huebner v. W. Jefferson Village Council, 

1996-Ohio-303

.]
Elections—Reconsideration procedures may be invoked to correct decisions
        made in error—S.Ct.Prac.R. XI—Determination of number of valid part-
        petition signatures for placement on ballot of proposed municipal charter
        amendment—Sections 5, 8, 9, and 14, Article XVIII, Ohio Constitution,
        construed in pari materia—Writ granted, when.
(No. 95-58—Submitted April 4, 1995—Decided July 26, 1995—Reconsideration
         Granted, Judgment Reversed, and Writ Allowed March 6, 1996.)
   APPEAL from the Court of Appeals for Madison County, No. CA94-08-030.
                          ON MOTION FOR RECONSIDERATION.
                                  __________________
        {¶ 1} Appellant, David A. Huebner, and other individuals circulated part-
petitions to place a proposed charter amendment on the November 8, 1994 ballot
for the village of West Jefferson. The amendment would restrict the village in
taxing wages originating within its boundaries to a rate of one percent. On July 18,
1994, the petition, which contained 208 valid signatures, was filed with the Clerk
of the West Jefferson Village Council. As of that date, there were 2,272 registered
voters in the village. The number of registered voters who had voted at the last
preceding general municipal election on November 2, 1993 was 482.
        {¶ 2} On August 15, 1994, appellees, West Jefferson Village Council
members, voted not to certify the part-petitions to the board of elections “for the
reason that they are not sufficient in form and in substance.” Appellees determined
that the petition did not contain sufficient valid signatures because it lacked
signatures of at least ten percent of all the electors in the village on the date the
                             SUPREME COURT OF OHIO




petition was filed, i.e., ten percent of the total number of West Jefferson registered
voters (2,272), or 228 valid signatures.
        {¶ 3} On August 19, 1994, Huebner filed a complaint in the Court of
Appeals for Madison County for a writ of mandamus compelling appellees to
certify the proposed charter amendment to the board of elections for placement of
the issue on the ballot for the next regular municipal election. The court of appeals
granted appellees’ motion for summary judgment and denied the writ, thereby
rejecting appellant’s contention that the requisite number of signatures was ten
percent of the number of registered voters who had voted at the last preceding
municipal election, i.e., 49 signatures.
        {¶ 4} On Huebner’s pro se appeal as of right from the denial of the writ, a
four to three majority of this court affirmed the court of appeals. State ex rel.
Huebner v. W. Jefferson Village Council (1995), 

72 Ohio St.3d 589

, 

651 N.E.2d 1001

.
        {¶ 5} The cause is now before the court upon appellant’s motion for
reconsideration, and motions for leave to intervene in support of appellant’s motion
filed by the city of Cincinnati and the Secretary of State.
                              ____________________
        S. David Worhatch, for appellant.
        Betty D. Montgomery, Attorney General, Susan E. Ashbrook and Andrew
S. Bergman, Assistant Attorneys General, for intervenor Secretary of State.
        Fay D. Dupuis, City Solicitor, Robert H. Johnstone, Deputy City Solicitor,
and Richard Gonulin, Assistant City Solicitor, for intervenor city of Cincinnati.
                              ____________________
        MOYER, C.J.
        {¶ 6} Following our July 26, 1995 decision in this cause, appellant retained
counsel, who filed the motion for reconsideration here and the complaint for a writ
of mandamus in a separate expedited election case, State ex rel. Ricchiuto v.



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                                     January Term, 1996




Reagan, case No. 95-1679. Both Ricchiuto and another expedited election case,
State ex rel. Taxpayers for Accountable Govt. v. Cincinnati City Council, case No.
95-1714, challenged the validity of Huebner. A third expedited election case, State
ex rel. Lewis v. Hamilton Cty. Bd. of Elections, case No. 95-1689, sought to apply
Huebner to prevent a previously certified charter amendment proposal from being
submitted to the electorate for vote. Ricchiuto was resolved when this court denied
the writ requested by the relators. State ex rel. Ricchiuto v. Reagan (1995), 

74 Ohio St.3d 11

, 

655 N.E.2d 1298

.              Taxpayers and Lewis were also subsequently
dismissed. State ex rel. Lewis v. Hamilton Cty. Bd. of Elections (1995), 

74 Ohio St.3d 1201

, 

655 N.E.2d 177

 (entry dismissing cause), 74 Ohio St.3d at 1202-1203,

655 N.E.2d at 177-178

 (Moyer, C.J., concurring) and 74 Ohio St.3d at 1203-1205,

655 N.E.2d at 178-179

 (Douglas, J., concurring).
         {¶ 7} Appellant and the city of Cincinnati1 now contend on reconsideration
that we should vacate our decision in Huebner and adopt the position of the
dissenting opinion therein or, alternatively, should modify Huebner so as to restrict
its effect to prospective cases.
         {¶ 8} We have invoked the reconsideration procedures set forth in
S.Ct.Prac.R. XI to correct decisions which, upon reflection, are deemed to have
been made in error. See State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections
(1993), 

67 Ohio St.3d 597

, 

622 N.E.2d 329

 (reasoning contained in a previous
dissenting opinion adopted by a majority of this court pursuant to a motion for
reconsideration); State ex rel. Eaton Corp. v. Lancaster (1989), 

44 Ohio St.3d 106

,

541 N.E.2d 64

 (views contained in a previous concurring opinion adopted by a
majority of this court pursuant to a motion for “rehearing”).




1. The motions for leave to intervene filed by the city of Cincinnati and the Secretary of State are
granted.




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                             SUPREME COURT OF OHIO




       {¶ 9} The majority Huebner opinion reasoned that denial of the requested
writ was justified, in part, by the Home Rule Amendment to the Ohio Constitution,
which authorizes municipalities “to exercise all powers of local self-government
and to adopt and enforce within their limits such local police, sanitary and other
similar regulations, as are not in conflict with general laws.” Section 3, Article
XVIII, Ohio Constitution. This justification for denial of the writ was not raised
by appellees or discussed by the court of appeals, nor was it fully briefed in this
court prior to issuance of our first opinion.        We note, additionally, that the
discussion of the Home Rule Amendment in our original opinion appears to be
contrary to established precedent, and the sole case cited therein appears to be
inapposite. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 

62 Ohio St.3d 17

, 

577 N.E.2d 645

. See, also, State ex rel. Semik v. Cuyahoga Cty. Bd. of
Elections (1993), 

67 Ohio St.3d 334, 335-336

, 

617 N.E.2d 1120, 1122

, citing State
ex rel. Hinchliffe v. Gibbons (1927), 

116 Ohio St. 390, 395

, 

156 N.E. 455, 457

;
Bazell v. Cincinnati (1968), 

13 Ohio St.2d 63

, 

42 O.O.2d 137

, 

233 N.E.2d 864

,
paragraph one of the syllabus. Appellant now urges us to recognize and reaffirm
the principle that subordinate authority must always yield to contrary paramount
authority, and hold that municipal charters may not be construed so as to overrule
rights guaranteed to the citizens of Ohio by the Ohio Constitution. Upon further
reflection, and on this record, we conclude that the Home Rule Amendment cannot
support denial of the writ requested in this case.
       {¶ 10} The second rationale of our Huebner decision, and the basis of the
court of appeals’ decision, is the premise that Section 9, Article XVIII of the Ohio
Constitution constitutes a special provision (concerning charter amendments)
which is in irreconcilable conflict with the general provision of Section 14, Article
XVIII, Ohio Constitution. However, appellant and the Huebner dissent argue for a
different interpretation of Sections 9 and 14. While Sections 5, 8, and 9 of Article




                                          4
                                January Term, 1996




XVIII refer to petitions of “ten per centum of the electors,” they do not specify the
basis or date upon which the “ten per centum of electors” is to be calculated.
       {¶ 11} The court of appeals additionally determined that Section 9 should
be deemed to prevail over Section 14 because Section 9 was last amended in 1971.
On reconsideration, appellant argues against this view, in that the 1971 amendment
to Section 9 did not affect the number of signatures required for submission of a
proposed charter amendment to the electorate, but rather authorized notice of
proposed charter amendments to be given by newspaper publication and not by
mailing. Am.Sub.S.J.R. No. 31, 133 Ohio Senate Journal (1969-1970), at 1508.
We agree.
       {¶ 12} A majority of this court now concludes that Section 14 is
reconcilable with Sections 5, 8, and 9, of Article XVIII for the reasons set forth in
the dissent to our first Huebner opinion as summarized herein. We hold that, in
determining the number of valid part-petition signatures necessary to establish a
right to the placement of a proposed amendment of a municipal charter before the
voters, Sections 5, 8, 9 and 14, Article XVIII of the Ohio Constitution must be
construed in pari materia. Accordingly, the percentage of electors required to sign
such part-petitions is ten percent of the electors of the municipality based upon the
total number of votes cast at the last preceding general municipal election. In the
case at bar the relator was therefore required to present 49 valid signatures to create
a legal duty on the part of the appellees to certify the proposed amendment for
presentation on the ballot. Appellant met and exceeded that requirement by
presenting part-petitions that contained 208 valid signatures.
       {¶ 13} Our decision is based upon a clear reading and consistent application
of the Ohio Constitution. It is also the correct result for reasons of public policy.
As appellant contends in his motion for reconsideration, our original opinion
precludes electors from knowing the exact number of valid signatures required
when circulating part-petitions. Under our earlier opinion, the percentage is not




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                             SUPREME COURT OF OHIO




determined until the date the petition is filed, and the number of actual electors of
a municipality may vary over time based on voter registration drives, annexations,
or other events. Conversely, this uncertainty does not exist if Section 14 is applied,
since petitioners know the precise number of valid signatures required for
submission of the issue to the electorate. Furthermore, this interpretation fosters
the goal of providing citizens with access to the ballot, a foundation of our
democracy.    Moreover, Section 14 was adopted contemporaneously with the
pertinent provisions of Sections 5, 8, and 9 of Article XVIII, all of which became
effective in 1912, and have been construed in pari materia since that time. We note
as well that the Secretary of State, the state’s chief election officer, has urged this
interpretation of the relevant provisions of the Ohio Constitution. (Motion to
dismiss, case No. 95-1689, State ex rel. 

Lewis, supra.)

       {¶ 14} Having concluded that the reasoning contained in our prior opinion
of July 26, 1995 should be rejected, we must now discuss issues which the court of
appeals found unnecessary to address in view of its conclusion that appellant failed
to present a sufficient number of signatures.
       {¶ 15} In addition to an alleged lack of sufficient number of signatures,
appellees further justified their refusal to certify the proposed charter amendment
based on their conclusion that the petition misled electors and was confusing.
However, a municipal legislative authority such as a city or village council lacks
authority to consider substantive errors in reviewing the sufficiency of petitions,
and is instead limited to reviewing the form of the petition. State ex rel. Polcyn v.
Burkhart (1973), 

33 Ohio St.2d 7, 11-12

, 

62 O.O.2d 202, 204

, 

292 N.E.2d 883, 886

; State ex rel. Concerned Citizens for More Professional Govt. v. Zanesville
City Council (1994), 

70 Ohio St.3d 455, 457-458

, 

639 N.E.2d 421, 423

; State ex
rel. Citizens for a Better Portsmouth v. Sydnor (1991), 

61 Ohio St.3d 49

, 

572 N.E.2d 649

. Appellees conceded below that they rejected the petition partly based




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                                 January Term, 1996




on its substance. The appellees thereby exceeded their authority, and this proffered
alternative basis for rejecting the petition is invalid.
        {¶ 16} Where a municipal legislative authority erroneously either fails to
submit a charter amendment when it is presented with a legally sufficient petition
or fails to make a prompt determination on the sufficiency of the petition within the
constitutional time period, this court has issued writs of mandamus to order
placement on the next regular election ballot. Morris v. Macedonia City Council
(1994), 

71 Ohio St.3d 52

, 

641 N.E.2d 1075

; State ex rel. Citizens for a Better
Portsmouth v. 

Sydnor, supra;

 State ex rel. Jurcisin v. Cotner (1984), 

10 Ohio St.3d 171

, 10 OBR 503, 

462 N.E.2d 381

. A regular primary election is scheduled to
occur in this state not less than sixty nor more than one hundred and twenty days
from the date of this decision. Cf. Section 8, Article XVIII, Ohio Constitution. We
find presentation of the charter amendment issue on the March 1996 primary ballot
to be the most equitable resolution of this cause for both relator and the public.
        {¶ 17} Pursuant to S.Ct.Prac.R. XI, the timely filing of a motion for
reconsideration temporarily relieves the Clerk of this court of the duty to issue a
mandate in accordance with the court’s judgment. Because the appellant timely
filed the instant motion for reconsideration in this cause, no mandate has yet been
issued in this action to implement the opinion previously rendered on July 26, 1995
and reported at 

72 Ohio St.3d 589

, 

651 N.E.2d 1001

. Pursuant to S.Ct.Prac.R.
XI(3)(A)(2), where a motion for reconsideration is timely filed and granted, a
mandate is to issue at the time the Supreme Court’s judgment entry on
reconsideration is entered. Because a majority of this court concludes that the
motion for reconsideration in this cause should be granted and that the judgment of
the court of appeals should be reversed, the Clerk is instructed to issue a writ of
mandamus compelling appellees to certify the proposed charter amendment to the
board of elections for placement on the primary election ballot as a special election
issue to be presented to the electorate of West Jefferson on March 19, 1996.




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                            SUPREME COURT OF OHIO




                                                         Motion for reconsideration
                                                         granted, judgment reversed
                                                                  and writ granted.
       WRIGHT, PFEIFER and COOK, JJ., concur.
       PFEIFER, J., concurs separately.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
                              __________________
       PFEIFER, J., concurring.
       {¶ 18} I concur with the legal determinations made by the majority because
I do not believe that Section 9, Article XVIII of the Ohio Constitution clearly
prevails over Section 14, Article XVIII. The two provisions in the Constitution
contradict one another. After reviewing the brief submitted by the intervenor
Secretary of State, I conclude that our decision in State ex rel. Huebner v. W.
Jefferson Village Council (1995), 

72 Ohio St.3d 589

, 

651 N.E.2d 1001

, is
impractical and that the majority’s new approach is the better way to harmonize
these conflicting provisions of the Ohio Constitution.
                              __________________
       DOUGLAS, J., dissenting.
       {¶ 19} I respectfully dissent from the judgment and the opinion of the
majority because I believe the majority makes not only a fundamental error of law
but also a dangerous and unprecedented error of public policy. The damage of
today’s blow to charter municipalities cannot be overestimated.
       {¶ 20} Section 7, Article XVIII of the Ohio Constitution provides that
“[a]ny municipality may frame and adopt or amend a charter for its government
and may, subject to the provisions of section 3 of this article, exercise thereunder
all powers of local self-government.” (Emphasis added.) This is the “home rule”
provision of the Ohio Constitution.




                                          8
                                January Term, 1996




       {¶ 21} Section 9, Article XVIII of the Ohio Constitution sets forth the
procedure to be used in amending a charter created in accordance with Section 7.
Section 9 provides, in pertinent part, that “[a]mendments 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.” (Emphasis added.)
       {¶ 22} R.C. 3501.01(N) defines “elector.” “‘Elector’ * * * means a person
having the qualifications provided by law to be entitled to vote.” (Emphasis added.)
R.C. 3501.01(O) defines “voter.” “‘Voter’ means an elector who votes at an
election.” (Emphasis added.) The difference between a person who is an “elector”
and one who is a “voter” is obvious from these definitions.
       {¶ 23} Two other sections of Article XVIII of the Constitution use the term
“electors” in connection with the right of petition.        Section 5 deals with a
municipality’s efforts “* * * to acquire, construct, own, lease or operate a public
utility * * *.” The section provides that “[i]f within * * * thirty days a petition
signed by ten per centum of the electors of the municipality shall be filed with the
executive authority thereof demanding a referendum on such ordinance it shall not
take effect until submitted to the electors and approved by a majority of those voting
thereon.” (Emphasis added.)
       {¶ 24} Section 8 provides, in part, that “* * * upon petition of ten per
centum of the electors [the legislative authority of any city or village] shall
forthwith, provide by ordinance for the submission to the electors, of the question,
‘Shall a commission be chosen to frame a charter.’”
       {¶ 25} Thus, Sections 5, 8 and 9 of Article XVIII of the Ohio Constitution
provide for petitions signed by ten per centum of the electors to place on a ballot
matters concerning public utilities, charter commissions and charter amendments.
Notwithstanding these clear, unambiguous and mandatory provisions, the majority




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                             SUPREME COURT OF OHIO




today says that signatures of ten per centum of the electors are not needed. All that
is needed to place these important issues on a ballot for, if successful, inclusion in
the charter of a municipality, are the signatures of ten per centum of the persons
voting (voters) at the last preceding general municipal election. To arrive at this
result, the majority references Section 14, Article XVIII of the Ohio Constitution.
If the majority’s conclusion is correct, then Section 14 conflicts with Sections 5, 8
and 9, and the specific provisions of Sections 5, 8 and 9 prevail over the general
provisions of Section 14. R.C. 1.51. No matter how the majority says it in different
ways and no matter how many times the majority says otherwise, the terms
“electors” and “voters” cannot be made to mean the same. Our duty is to harmonize
such conflicts but, sometimes, harmony is not possible. One could not conceive of
harmonizing the hymn “Amazing Grace” with the song “Yellow Submarine.”
“Electors” are those people registered to vote. “Voters” are those electors who
actually vote in a given election.
       {¶ 26} Why is any or all of this so important? Because the charter of a city
is comparable to a local constitution. In State ex rel. Bednar v. N. Canton (1994),

69 Ohio St.3d 278, 281

, 

631 N.E.2d 621, 624

, we said that “[m]any ‘matters of
local self-government’ are, in fact, matters of detail and procedure that are out of
place in a charter, which is comparable to a local constitution.” We repeated this
in the very recent case of State ex rel. Hipp v. N. Canton (1996), 

75 Ohio St.3d 221

,
___, 

661 N.E.2d 1090

, ___. Yet, today the majority makes it easier to obtain a vote
to place a matter in a municipality’s constitution than it is to obtain a vote on a
simple ordinance. By today’s decision, the majority negates, I believe, many
municipal charter provisions that we do not, nor cannot, even know exist. Take just
two examples.
       {¶ 27} In a recent case decided by this court, Paschal v. Cuyahoga Cty. Bd.
of Elections (1995), 

74 Ohio St.3d 141

, 

656 N.E.2d 1276

 (decided by the court on
grounds different than the issue now before us in the case at bar), a number of



                                         10
                                 January Term, 1996




residents of the village of Highland Hills in Cuyahoga County initiated and signed
petitions seeking to have placed on the ballot an ordinance that would have
prohibited, if the ordinance were passed, any new penal facilities within the village.
The petitions were circulated pursuant to Article VI (Initiative, Referendum and
Recall) of the charter of the village of Highland Hills.
        {¶ 28} Section 1(b), Article VI of the charter of the village states, in part,
that: “An initiated ordinance or resolution shall be submitted to Council by a
petition signed by qualified electors equal in number to at least fifteen percent
(15%) of the total vote cast in the last regular municipal election.” (Emphasis
added.) Further, a subsequent provision in the same section (Section 1) states that
“[i]f the initiative petition is signed by qualified electors equal in number to at least
twenty-five percent (25%) of the total votes cast at the last regular municipal
election, the date of the election may be fixed by the petition.” (Emphasis added.)
Thus, to initiate an ordinance in Highland Hills, petitions signed by at least fifteen
percent of the electors of the village who voted in the last regular municipal election
must be presented. If the petitioners choose to designate a date for the election,
then signatures of twenty-five percent of the total number of people who cast votes
cast at the last regular municipal election must be submitted.
        {¶ 29} By today’s majority decision, it will now be easier to propose the
amending of the constitution (charter) of the village of Highland Hills than to
initiate an ordinance. Accordingly, if a proposed charter amendment, placed on the
ballot, pursuant to today’s majority decision, by signatures of ten percent of those
voting at the last regular municipal election were adopted, then the constitution of
the village of Highland Hills would contain the “no new jails” provision. Clearly,
the cited provisions of the charter of Highland Hills and all other charters in this
state with like or similar provisions are rendered, by a stroke of our pens,
inoperative.




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                                SUPREME COURT OF OHIO




        {¶ 30} Or, as yet another example, take the charter of the city of Toledo.
Section 5, Chapter I of the charter provides for the amending of the charter. The
section provides, in part, that “[a]ny amendment to this Charter * * * shall be
submitted when a petition is filed with the Clerk of the Council setting forth the
proposed amendment and signed by not less than ten percent of the electors.”
(Emphasis added.) Section 6, Chapter I defines “electors” as “residents of the City
qualified to vote to fill all elective offices.”
        {¶ 31} Chapter VI of the charter of the city of Toledo is entitled “Initiative,
Referendum and Recall.” Section 75, Chapter VI provides for how ordinances may
be initiated. The section provides that “[a]ny proposed ordinance may be submitted
to the Council by petitions filed with the Clerk and signed by electors of the City
equal in number to twelve percent (12%) of the total number of votes cast for all
candidates for Mayor at the most recent general municipal election at which the
Mayor was elected.” (Emphasis added.)
        {¶ 32} Now suppose a group of well-meaning citizens of Toledo decided
that no junk cars may be parked or stored on a residential property, or that no spray
paint may be sold to minors because the city has a graffiti problem, or that each cat
owned by a citizen must have, like dogs, a license, or that there should be a curfew
(there now is) in the city. The citizens set about trying to find the easiest way to
have such proposals become the law of the city. They determine that a vote of the
people of Toledo is necessary because city council rejects all the citizens’ ideas.
        {¶ 33} Assume that the last general municipal election was held in
November 1993.          At that election, there were 172,0002 registered voters
(“electors”). A total of 95,500 electors voted (“voters”) and 92,500 of those voted
in the mayor’s race. If these citizens wanted to initiate an ordinance on any one or
all of the matters referenced, they would need (to place the matter on the ballot)


2. All numbers have been rounded off.




                                            12
                                January Term, 1996




petitions containing the signatures (pursuant to the charter) of twelve percent of
92,500 or 11,100. If they want their proposal(s) to be in the constitution of the city,
then a charter amendment is necessary and, by the terms of Section 5, Chapter I
they need the signatures of ten percent of 172,000 (electors) or 17,200. But by
today’s majority decision, they can decide that it is easier to put “anti-graffiti” in
the city constitution because all they now need, to place the question on the ballot
as a charter amendment, are petitions containing the signatures of ten percent of
95,500 or 9,550 signatures. Thus, it is now easier to propose amendments to the
charters of villages and municipalities than it is to initiate an ordinance or
resolution.
       {¶ 34} It is clear that those persons framing charters know the difference
between “electors” and “voters.” This is evidenced by the fact that the term
“electors” is used and defined, and when the framers of the Highland Hills charter
meant “voters,” they spelled out “the total vote cast in the last regular municipal
election.”
       {¶ 35} Sir Winston Churchill once said, “I have always considered that the
substitution of the internal combustion engine for the horse marked a very gloomy
milestone in the progress of mankind.” International Dictionary of Thoughts
(1969) 586. While some will hail today’s majority decision as progress for easy
access to the ballot, I can foresee that those governmental subdivisions with charters
will consider this day to be a gloomy milestone for their constitutions.
       {¶ 36} I respectfully dissent. I would deny the motion for reconsideration
and adhere to our decision reported in 

72 Ohio St.3d 589

, 

651 N.E.2d 1001

, which
affirmed the well-reasoned judgment of the court of appeals. Our prior case was
decided on July 26, 1995—less than eight months ago. At least now maybe we will
not see any more lectures on stare decisis.
       RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting opinion.
                               __________________




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