State ex rel. Sinay v. Sodders

[This opinion has been published in Ohio Official Reports at 

80 Ohio St.3d 224

.]




   THE STATE EX REL. SINAY ET AL., APPELLEES, v. SODDERS, CLERK, ET AL.,
                                      APPELLANTS.
              [Cite as State ex rel. Sinay v. Sodders, 

1997-Ohio-344

.]
Elections—Mandamus to compel Clerk and Director of Finance of city of
        Englewood to certify and transmit to the Montgomery County Board of
        Elections an initiative petition proposing an ordinance approving an
        agreement between Englewood, village of Clayton, and Randolph Township
        for a joint fire and ambulance district—Writ granted, when.
    (No. 97-1785—Submitted October 10, 1997—Decided October 15, 1997.)
     APPEAL from the Court of Appeals for Montgomery County, No. 16704.
                                  __________________
        {¶ 1} Appellee Randolph Township has provided fire, ambulance, and
emergency medical services to township residents, including those residing in the
cities of Englewood and Union and the village of Clayton, for over fifty-seven
years. Effective January 1998, Randolph Township and Clayton will merge and
Randolph Township will cease to exist. Randolph Township and Clayton adopted
an agreement that could potentially include Englewood and Union and would create
a joint fire and ambulance district to continue the provision of fire, ambulance, and
emergency medical services to township residents.
        {¶ 2} On July 8, 1997, a committee of circulators, which included relators
Frederick J. Sinay and Claude R. Spitler, who are residents, electors, and taxpayers
of Englewood, filed an initiative petition with appellant Karen Sodders, Clerk of
Englewood. The initiative petition proposed an Englewood ordinance approving
the agreement between Englewood, Clayton, Randolph Township, and if
subsequently approved by its electors, Union, to create a joint fire and ambulance
district. The initiative petition contained the signatures of more than ten percent of
                             SUPREME COURT OF OHIO




the number of electors who voted for Governor at the most recent general election
for Governor in Englewood and requested placement of the proposed ordinance on
the November 4 election ballot.       The petition used forms prescribed by the
Secretary of State for municipal initiatives; it did not contain circulator statements
specifying their compensation for soliciting signatures and verifying that the
electors signing the petition did so with knowledge of its contents. Sodders held
the petition open for public inspection for ten days, in accordance with R.C. 731.34.
       {¶ 3} On July 29, Sodders refused to certify and transmit the initiative
petition to the Montgomery County Board of Elections (“board”). On July 30,
appellees, Sinay, Spitler, Randolph Township, and Randolph Township Board of
Trustees, filed a complaint in the Court of Appeals for Montgomery County for
writs of mandamus to compel appellants, Sodders and Englewood Director of
Finance Jeff Bothwell, to (1) transmit the petition and a certified copy of the
proposed ordinance to the board, and (2) certify the sufficiency and validity of the
petition. After the court of appeals granted an alternative writ, appellants filed a
motion for summary judgment. Appellants claimed that they had no duty to
perform the requested acts because, among other reasons, (1) the petition was
invalid, since it did not include the circulator compensation and elector knowledge
statements required by R.C. 3519.05 and 3519.06, (2) Sodders could not be
compelled to exercise her discretion to certify the sufficiency and validity of the
petition, (3) Sodders did not have to exercise her discretion to determine the
sufficiency and validity of the petition until the board returned the petition to her,
and (4) Randolph Township and its board of trustees lacked standing to bring the
mandamus action.
       {¶ 4} On August 8, the court of appeals issued a writ of mandamus ordering
appellants to transmit the initiative petition and a certified copy of the proposed
Englewood ordinance to the board. On August 14, the court of appeals issued a




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                                January Term, 1997




writ of mandamus compelling appellants to certify the sufficiency and validity of
the petition to the board by August 15.
       {¶ 5} This cause is now before the court upon an appeal as of right.
                               __________________
       Coolidge, Wall, Womsley & Lombard Co., L.P.A., and Janice M. Paulus,
for appellees Sinay et al.
       Gottschlich & Portune, LLP, and Robert E. Portune, for appellees Randolph
Township et al.
       Michael P. McNamee, Englewood Law Director; Calfee, Halter &
Griswold, LLP, and Mark I. Wallach, for appellants.
                               __________________
       Per Curiam.
                                      Standing
       {¶ 6} Appellants assert in their fifth proposition of law that the court of
appeals erred by failing to dismiss appellees Randolph Township and the Randolph
Township Board of Trustees because they lacked the requisite standing to be
relators in the mandamus action. The court of appeals refused to rule on this issue
because appellants conceded that the remaining appellees, Sinay and Spitler, had
standing so that the issue of the standing of Randolph Township and its board of
trustees was immaterial to whether appellants should be compelled to perform the
requested acts. The court of appeals is correct. Regardless of whether Randolph
Township and its board of trustees had standing, Sinay and Spitler did, so the writs
of mandamus could still issue to compel appellants to perform the requested acts.
       {¶ 7} In addition, Randolph Township and its board of trustees had
sufficient standing. Appellants contend that a party that is neither a taxpayer nor
an elector of a municipality lacks standing in a mandamus action regarding a
municipal initiative petition. Civ.R. 17(A) provides that “[e]very action shall be
prosecuted in the name of the real party in interest.” Further, a complaint for a writ




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                              SUPREME COURT OF OHIO




of mandamus must set forth facts showing that the relator is a party beneficially
interested in the requested acts before a proper claim is established. R.C. 2731.02.
A real party in interest is directly benefited or injured by the outcome of the case
rather than merely having an interest in the action itself. State ex rel. Massie v.
Gahanna-Jefferson Pub. Schools Bd. of Edn. (1996), 

76 Ohio St.3d 584, 585

, 

669 N.E.2d 839, 841

.
        {¶ 8} It is true that as a general principle, resident electors and taxpayers
like Sinay and Spitler have standing to bring mandamus actions to enforce public
duties in election matters. State ex rel. Barth v. Hamilton Cty. Bd. of Elections
(1992), 

65 Ohio St.3d 219, 221-222

, 

602 N.E.2d 1130, 1132-1133

. Nevertheless,
this does not mean that a nonresident nonelector of a municipality can never have
standing to compel a public official of the municipality to perform public duties.
But, see, State ex rel. Russell v. Ehrnfelt (1993), 

67 Ohio St.3d 132, 133

, 

616 N.E.2d 237, 238

 (Nontaxpaying nonresidents of municipal corporation who merely
had a contingent, contractual interest in sewer rates paid by others lacked standing
to bring mandamus action to compel mayor to enforce ordinance pertaining to
sewer rates.).
        {¶ 9} Instead, the applicable test is whether relators would be directly
benefited or injured by a judgment in the case. Massie, 76 Ohio St.3d at 585, 

669 N.E.2d at 841

. This test applies to mandamus actions concerning election matters.
State ex rel. Botkins v. Laws (1994), 

69 Ohio St.3d 383, 387-388

, 

632 N.E.2d 897, 902

; State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 

62 Ohio St.3d 145, 150-151

, 

580 N.E.2d 767, 771

.             Here, absent the writs of mandamus,
respondents’ failure to perform the requested acts would have directly injured
Randolph Township and its board of trustees by nullifying their agreement to create
a joint fire and ambulance district, which is the subject of the initiative petition.
        {¶ 10} Based on the foregoing, even if the court of appeals erred in refusing
to rule on the standing issue, any error was harmless because Randolph Township




                                           4
                                      January Term, 1997




and its board of trustees had standing as relators to commence the mandamus
action.1 The main case relied on by appellants, State ex rel. Skilton v. Miller (1955),

164 Ohio St. 163

, 

57 O.O. 145

, 

128 N.E.2d 47

, paragraphs one, two, and three of
the syllabus, is inapposite because in that case, the relator did not show that he was
injured by the violation in any manner different from the general public.
                   R.C. 3519.05 and 3519.06; Circulator Statements
         {¶ 11} Appellants assert in their first and fourth propositions of law that
they acted properly in refusing to certify the sufficiency and validity of the initiative
petition to the board of elections. Section 7.01, Article VII of the Englewood
Charter provides that municipal initiative and referendum powers “shall be
exercised in a manner provided by the constitution and laws of the State of Ohio,
except that all documents which according to the laws of the state are to be filed
with the auditor shall be filed with the Clerk of the municipality.” R.C. 731.31,
which contains requirements for the presentation of municipal initiative and
referendum petitions, provides that these petitions “shall be governed in all other
respects by the rules set forth in section 3501.38 of the Revised Code.” R.C.
3501.38 provides that all petitions “in addition to meeting the other specific
requirements prescribed in the sections of the Revised Code relating thereto” are
governed by specified rules, including that:
         “(E) On each petition paper the circulator shall indicate the number of
signatures contained thereon, and shall sign a statement made under penalty of
election falsification that he witnessed the affixing of every signature, that all
signers were to the best of his knowledge and belief qualified to sign, and that every



1. Aside from this preliminary issue of standing, which would apply to both writs of mandamus
issued by the court of appeals, appellants’ propositions challenge only the court of appeals’ August
14 writ of mandamus compelling appellants to certify the sufficiency and validity of the petition to
the board by August 15. Therefore, we affirm the court of appeals’ issuance of its August 8 writ of
mandamus ordering appellants to transmit the initiative petition and a certified copy of the proposed
ordinance to the board. Sodders had a ministerial duty to perform this act.




                                                 5
                              SUPREME COURT OF OHIO




signature is to the best of his knowledge and belief the signature of the person
whose signature it purports to be.”
       {¶ 12} While appellants do not contend that the initiative petition failed to
comply with the foregoing requirements of R.C. 3501.38(E), they claim that the
initiative petition was invalid because it did not comply with R.C. 3519.05 and
3519.06, which are “other specific requirements” mentioned in R.C. 3501.38.
       {¶ 13} The paramount consideration in construing statutes is legislative
intent. State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 

77 Ohio St.3d 338, 340

, 

673 N.E.2d 1351, 1353

. In determining legislative intent, we must review
the language of R.C. 3519.05 and 3519.06. See State ex rel. Herman v. Klopfleisch
(1995), 

72 Ohio St.3d 581, 584

, 

651 N.E.2d 995, 997

. R.C. 3519.05 and 3519.06
involve the same subject matter and should be construed in pari materia. See, e.g.,
State ex rel. Hodges v. Taft (1992), 

64 Ohio St.3d 1, 5-6

, 

591 N.E.2d 1186, 1190

;
Hughes v. Ohio Bur. of Motor Vehicles (1997), 

79 Ohio St.3d 305, 308

, 

681 N.E.2d 430, 433

 (“All statutes pertaining to the same general subject matter must be read
in pari materia.”).
       {¶ 14} R.C. 3519.06 provides:
       “No initiative or referendum part-petition is properly verified if it appears
on the face thereof, or is made to appear by satisfactory evidence:
       “(A) That the statement required by section 3519.05 of the Revised Code is
not properly filled out[.]”
       {¶ 15} R.C. 3519.05 requires that the petition include a circulator’s
statement specifying if the circulator received any consideration for soliciting
signatures and a declaration by the circulator that the electors signing the petition
did so with knowledge of its contents. The initiative petition here contained neither
of these statements.
       {¶ 16} Nevertheless, for the reasons that follow, the court of appeals
correctly concluded that R.C. 3519.05 and 3519.06 did not require the municipal




                                         6
                                 January Term, 1997




initiative petition to contain circulator compensation or elector knowledge
statements. First, we have consistently recognized that R.C. Chapter 3519 applies
only to statewide initiative and referendum petitions. State ex rel. Huebner v. W.
Jefferson Village Council (1995), 

72 Ohio St.3d 589, 591

, 

651 N.E.2d 1001

, 1003,
reconsideration granted on other grounds (1996), 

75 Ohio St.3d 381

, 

662 N.E.2d 339

; State ex rel. Spadafora v. Toledo City Council (1994), 

71 Ohio St.3d 546, 549

,

644 N.E.2d 393

, 395; Markus v. Trumbull Cty. Bd. of Elections (1970), 

22 Ohio St.2d 197, 200

, 

51 O.O.2d 277, 279

, 

259 N.E.2d 501, 502-503

.
        {¶ 17} Second, a review of the plain language of the statutes indicates that
they do not apply to municipal petitions. R.C. 3519.06 specifically refers to the
statement required by R.C. 3519.05. R.C. 3519.05, which governs the form of
petitions, contains references limiting its applicability to statewide issues, e.g.,
“constitutional amendment,” “certification of the attorney general,” “[t]he text of
proposed amendment * * * shall be prefaced by ‘Be it resolved by the people of the
State of Ohio,’ ” “ ‘Law proposed by initiative petition first to be submitted to the
General Assembly,’ ” and “[t]he text of the law so referred shall be followed by the
certification of the secretary of state * * * that it has been compared with the copy
of the enrolled bill * * *.”
        {¶ 18} Third, the petition used forms prescribed by the state’s chief election
officer, the Secretary of State. Therefore, we must accord weight to the Secretary
of State’s apparent view that neither R.C. 3519.05 nor 3519.06 requires circulator
compensation or elector-knowledge statements in municipal initiative and
referendum petitions. State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections
(1996), 

75 Ohio St.3d 44, 47

, 

661 N.E.2d 699, 701

, quoting Herman, 

72 Ohio St.3d at 586

, 

651 N.E.2d at 999

 (“ ‘[W]hen an election statute is subject to two different,
but equally reasonable, interpretations, the interpretation of the Secretary of State,
the state’s chief election officer, is entitled to more weight.’ ”).




                                            7
                              SUPREME COURT OF OHIO




        {¶ 19} Finally, appellants’ claim that Spadafora and State ex rel. Watkins v.
Quirk (1978), 

59 Ohio App.2d 175

, 

13 O.O.3d 202

, 

392 N.E.2d 1302

, required that
the municipal initiative petition comply with R.C. 3519.05 and 3519.06 lacks merit.
These cases provide merely that R.C. 3519.05 and 3519.06 may be applied to
municipal petitions if R.C. 3519.05 statements are attached to the petition and are
either false or altered. Spadafora, 

71 Ohio St.3d at 549

, 644 N.E.2d at 395
(“Admittedly, R.C. Chapter 3519 involves statewide initiative and referendum
petitions. * * * We agree that R.C. 3519.06 may be applied to a municipal
referendum petition. Here, the board of elections * * * found [after a hearing] that
Baker had in fact been compensated for circulating part-petitions. Certainly this is
‘satisfactory evidence’ that on the face of the petition, there was a false statement.
See R.C. 3519.06[C]. Thus, city council not only had the right to reject the
ordinance placing the proposed charter amendment on the ballot — it had the duty
to do so.”); Watkins. As the court of appeals correctly held, Spadafora and Watkins
merely require that if a municipal initiative or referendum petition includes an R.C.
3519.05 circulator’s compensation or elector-knowledge statement, it may be
required to comply with R.C. 3519.06 to the extent that the statements must be
truthful and cannot be altered.
        {¶ 20} Based on the foregoing, Sodders erred in refusing to certify the
sufficiency and validity of the initiative petition to the board of elections.
                          R.C. 731.28; Discretionary Duty
        {¶ 21} Appellants assert in their second proposition of law that the court of
appeals erred in granting a writ of mandamus to compel Sodders to certify the
sufficiency and validity of the initiative petition to the board because she possessed
discretion under R.C. 731.28 to make such certification. Prior to the enactment of
Am.Sub.H.B. No. 192, effective October 10, 1991, R.C. 731.28 provided in
pertinent part:




                                           8
                                January Term, 1997




        “Where a petition is filed with the city auditor or village clerk, signed by
the required number of electors proposing an ordinance or other measure, such
auditor or clerk shall, after ten days, certify the text of the proposed ordinance or
measure to the board of elections. The auditor or clerk shall retain the petition.
        “The board shall submit such proposed ordinance or measure for the
approval or rejection of the electors of the municipal corporation at the next
succeeding general election, occurring subsequent to seventy-five days after the
certifying of such initiative petition to the board of elections.” (138 Ohio Laws,
Part II, 4619.)
        {¶ 22} Under this version of R.C. 731.28, the municipal official had only a
ministerial duty to certify to the board of elections the text of a proposal for which
sufficient signatures had been obtained, whereas the board of elections had
authority under R.C. 3501.11(K) to review the sufficiency and validity of the
petition. See, e.g., State ex rel. Williams v. Iannucci (1988), 

39 Ohio St.3d 292, 294

, 

530 N.E.2d 869, 870-871

.
        {¶ 23} But effective October 10, 1991, R.C. 731.28 was amended to modify
the requirements pertaining to municipal initiative petitions. See Am.Sub.H.B. No.
192, which similarly amended the requirements concerning municipal referendum
petitions in R.C. 731.29. (144 Ohio Laws, Part II, 3460-3461.) Am.Sub.H.B. No.
192 afforded city auditors and village clerks discretionary authority to determine
the sufficiency and validity of municipal initiative and referendum petitions. The
current version of R.C. 731.28 follows the 1991 amendment and retains this
authority:
        “When a petition is filed with the city auditor or village clerk, signed by the
required number of electors proposing an ordinance or other measure, such auditor
or clerk shall, after ten days, transmit a certified copy of the text of the proposed
ordinance or measure to the board of elections. The auditor or clerk shall transmit
the petition to the board together with the certified copy of the proposed ordinance




                                           9
                              SUPREME COURT OF OHIO




or other measure. The board shall examine all signatures on the petition to
determine the number of electors of the municipal corporation who signed the
petition. The board shall return the petition to the auditor or the clerk within ten
days after receiving it, together with a statement attesting to the number of such
electors who signed the petition.
       “The board shall submit such proposed ordinance or measure for the
approval or rejection of the electors of the municipal corporation at the next general
election occurring subsequent to seventy-five days after the auditor or clerk
certifies the sufficiency and validity of the initiative petition to the board of
elections. * * *
       “As used in this section, ‘certified copy’ means a copy containing a written
statement attesting it is a true and exact reproduction of the original proposed
ordinance or other measure.” (Emphasis added.) Am.Sub.H.B. No. 99, effective
August 22, 1995.
       {¶ 24} The current version of R.C. 731.28, beginning with the 1991
amendment, envisions the following procedure:
       1. When a petition for an initiated ordinance or other measure is signed by
the required number of electors, the auditor or clerk has a mandatory, ministerial
duty, after ten days from the date the petition was filed, to transmit the petition and
a certified copy of the text of the proposed ordinance or other measure to the board
of elections. See Williams.
       2. Within ten days of receiving the petition, the board of elections is
required to determine the number of electors of the municipal corporation who
signed the petition and return the petition to the auditor or clerk together with a
statement attesting to the number.
       3. The auditor or clerk then exercises limited, discretionary authority to
determine the sufficiency and validity of the petition. See, generally, 1 Gotherman
& Babbit, Ohio Municipal Law (1992) 119, Section T 7.37(B). The auditor or clerk




                                          10
                                 January Term, 1997




does not inquire into questions not evident on the face of the petition or conduct a
judicial or quasi-judicial proceeding. Cf. Morris v. Macedonia City Council (1994),

71 Ohio St.3d 52, 55

, 

641 N.E.2d 1075, 1078

 (municipal legislative authorities are
similarly limited in their constitutional authority to examine the sufficiency of
petitions to amend city charter).
       4. If the auditor or clerk certifies the sufficiency and validity of the initiative
petition to the board of elections, the board must submit the proposed ordinance or
measure at the next succeeding general election occurring after seventy-five days
from the certification to the board of elections, but only if the board determines
under R.C. 3501.11(K) and 3501.39 that the petition is sufficient and valid. Cf.
Williams. In other words, contrary to appellants’ contentions, Am.Sub.H.B. No.
192 did not divest boards of elections of their preexisting authority to determine the
sufficiency and validity of municipal initiative and referendum petitions. Instead,
the preeminent purpose of the amendment was “to require that boards of elections,
rather than * * * municipal auditors and clerks, determine the number of qualified
electors who signed the initiative and referendum petitions.”               See title to
Am.Sub.H.B. No. 192. 144 Ohio Laws, Part II, 3458. If the General Assembly
had intended to completely divest boards of elections, which are the local
authorities best equipped to gauge compliance with election laws, of their authority
to determine the sufficiency and validity of these petitions, it would have done so
with unambiguous language. Since it did not do so, the General Assembly must
have intended that boards of elections retain this authority, as specified in R.C.
3501.11(K) and 3501.39. See, e.g., State ex rel. Janasik v. Sarosy (1967), 

12 Ohio St.2d 5, 6

, 

41 O.O.2d 3, 4

, 

230 N.E.2d 346, 347

 (“Thus, even though such
[municipal referendum] petitions are retained by the clerk and the initial duty is on
such clerk to determine the validity of the petition, if a protest is made to the board
as to the validity of the petitions it is incumbent on the board to examine and
determine the validity of the petitions.”); Williams, 

39 Ohio St.3d at 294

, 530




                                           11
                             SUPREME COURT OF OHIO




N.E.2d at 870-871 (Boards of elections retained authority under R.C. 3501.11[K]
to determine sufficiency and validity of municipal initiative petitions despite
similar language of former R.C. 731.28 that the board “shall submit such proposed
ordinance or measure * * *.”); State ex rel. SuperAmerica Group v. Licking Cty.
Bd. of Elections (1997), 

80 Ohio St.3d 182, 187

, 

685 N.E.2d 507, 511

 (Ten-day
limit in R.C. 731.29 does not restrict board of elections’ separate duties under R.C.
3501.11[K] to “[r]eview, examine, and certify the sufficiency and validity of
petitions and nomination papers.”); see, also, State ex rel. Cincinnati Post v.
Cincinnati (1996), 

76 Ohio St.3d 540, 543-544

, 

668 N.E.2d 903, 906

 (“We must
construe statutes to avoid unreasonable or absurd results.”).
       {¶ 25} Therefore, after construing R.C. 731.28 in light of the 1991
amendment, appellants are correct that Sodders’s determination under R.C. 731.28
to certify the sufficiency and validity of the petition is discretionary. Appellants
are additionally correct that a writ of mandamus cannot be used to control the
exercise of discretion. State ex rel. Dublin v. Delaware Cty. Bd. of Commrs. (1991),

62 Ohio St.3d 55, 60

, 

577 N.E.2d 1088, 1093

.
       {¶ 26} But a writ of mandamus will issue to correct an abuse of such
discretion by a nonjudicial public body or official. State ex rel. Crabtree v.
Franklin Cty. Bd. of Health (1997), 

77 Ohio St.3d 247, 249

, 

673 N.E.2d 1281, 1283

.
The term “abuse of discretion” indicates an unreasonable, arbitrary, or
unconscionable attitude. State ex rel. Bitter v. Missig (1995), 

72 Ohio St.3d 249, 253

, 

648 N.E.2d 1355, 1358

. Here, the main reason that Sodders refused to certify
the sufficiency and validity of the petition was because of its purported
noncompliance with R.C. 3519.05 and 3519.06. As discussed previously, these
sections are manifestly inapplicable.      Therefore, Sodders abused her limited
discretion under R.C. 731.28, as applicable to her under the Englewood Charter, by
refusing to certify the sufficiency and validity of the initiative petition because of
asserted noncompliance with R.C. 3519.05 and 3519.06.




                                         12
                                January Term, 1997




                      R.C. 731.28; Premature Certification
       {¶ 27} Appellants assert in their third proposition of law that Sodders’s
discretionary duty to certify the sufficiency and validity of a municipal initiative
petition under R.C. 731.28 did not arise until the board of elections returned the
petition to her following its elector examination.          Appellants claim that,
consequently, Sodders’s duty did not exist at the time that the court of appeals
issued its August 14 writ of mandamus to compel her to certify the sufficiency and
validity of the petition to the board by August 15 because the board had not yet
returned the petition to her with a statement attesting to the number of electors who
signed the petition. At the time the court of appeals issued the writ, there was no
evidence concerning whether Sodders had received the petition and statement from
the board.
       {¶ 28} As previously analyzed, R.C. 731.28 envisions that the auditor’s or
clerk’s duty to determine the sufficiency and validity of the municipal initiative
petition does not arise until after the board conducts its elector examination and
returns the petition. Gotherman & Babbit. As appellants note, Sodders cannot
normally exercise her limited discretion and discern the sufficiency and validity of
the petition until the board informs her how many electors signed the petition. See
R.C. 731.28 (“Such initiative petition must contain the signatures of not less than
ten per cent of the number of electors who voted for governor at the most recent
general election for the office of governor in the municipal corporation.”).
       {¶ 29} Here, however, the petition was filed with Sodders on July 8 and
requested placement of the proposed ordinance on the November 4 ballot. Under
R.C. 731.28, the last day for Sodders to certify the sufficiency and validity of the
petition to the board was August 20 in order for the issue to be placed on the
November 4 ballot. R.C. 731.28 (“The board shall submit such proposed ordinance
or measure for the approval or rejection of the electors of the municipal corporation
at the next general election occurring subsequent to seventy-five days after the




                                         13
                              SUPREME COURT OF OHIO




auditor or clerk certifies the sufficiency and validity of the initiative petition to the
board of elections.” [Emphasis added.]).
        {¶ 30} Due to Sodders’s unjustified delay in her initial ministerial duty to
transmit a copy of the petition and a certified copy of the proposed ordinance, the
board’s elector examination was delayed, thereby jeopardizing placement of the
proposed ordinance on the November 4 ballot.              Given the time constraints
engendered by Sodders’s inaction, Sodders’s erroneous reliance on R.C. 3519.05
and 3519.06, as well as the fact that the board retained its authority to determine
the sufficiency and validity of the petition, the court of appeals did not err in
granting the writ on August 14 to compel Sodders to certify the sufficiency and
validity of the petition even though no evidence indicated that the board had
returned the petition and elector statement back to Sodders. Cf. Morris (City
council’s unjustified failure to promptly determine sufficiency of petition for city
charter amendment warranted writ of mandamus compelling inclusion of charter
amendment initiative on next election ballot even though constitutional deadline
had expired.). In addition, appellants admit that they ultimately received the
petition and elector statement from the board prior to the August 20 deadline. They
do not assert that the number of electors attested by the board to have signed the
petition was insufficient under R.C. 731.28.
                                      Conclusion
        {¶ 31} Based on the foregoing, the court of appeals properly issued the writs
of mandamus compelling Sodders to perform the duties specified by R.C. 731.28.
Accordingly, the judgment of the court of appeals is affirmed.
                                                                    Judgment affirmed.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                               __________________




                                           14