[This decision has been published in Ohio Official Reports at
94 Ohio St.3d 472.]
THE STATE EX REL. DITMARS v. MCSWEENEY, CLERK, ET AL.
[Cite as State ex rel. Ditmars v. McSweeney, 2002-Ohio-997.]
Elections—Initiative petitions—Mandamus sought to compel City Clerk of
Columbus to serve a certified copy of Columbus Ordinance No. 1760.01
concerning protection and preservation of the Big Darby watershed on
the Franklin County Board of Elections—Writ granted, when.
(No. 02-297—Submitted March 5, 2002—Decided March 8, 2002.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, David Ditmars, is a resident of the city of Columbus, Ohio,
and is a member of a petitioning committee that was formed to circulate an initiative
petition. The initiative petition contains a proposed ordinance entitled “Ordinance
to Protect and Preserve the Big Darby Watershed.”1 The proposed ordinance
provides that for five years after the ordinance becomes effective, Columbus may
not permit within the Big Darby watershed (1) any extension of an existing, or
construction of any new, public drinking-water delivery system or public sewer
system; (2) any extension of an existing, or construction of any new, private sewage
system; and (3) any material modification of the natural surface water drainage
topography.
{¶ 2} On March 26, 2001, Ditmars filed a certified precirculation copy of
the initiative petition with the office of respondent Timothy McSweeney, the City
Clerk of Columbus. On October 3, 2001, Ditmars and others filed the initiative
1. For purposes of the proposed ordinance, the Big Darby watershed is defined as the area of land
in which the natural surface water drains into the Big Darby Creek, the Hellbranch Run, the Clover
Groff Ditch, or the Hamilton Ditch.
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petition, which consisted of 888 part-petitions containing 12,221 signatures, with
the city clerk’s office. On each of the part-petitions, the circulator signed the
preprinted circulator statement, which had the following declaration:
“I, ________________ (printed name of circulator), declare under penalty
of election falsification that I am a qualified elector of the State of Ohio and reside
at the address appearing below my signature hereto; that I am the circulator of the
foregoing petition paper containing ____________ (number) signatures; that I
witnessed the affixing of every signature, that all signers were to the best of my
knowledge and belief qualified to sign, and that every signature is to the best of my
knowledge and belief the signature of the person whose signature it purports to be.”
See R.C. 3501.38(E).
{¶ 3} None of the circulator statements on the part-petitions was notarized
or otherwise sworn to by the circulator under oath.
{¶ 4} McSweeney sent the petition to the Franklin County Board of
Elections to verify the number of valid signatures of registered Columbus electors.
On October 11, 2001, the board returned the petition to McSweeney with its report
that the petition contained more than the required number of valid signatures.
{¶ 5} On October 15, 2001, McSweeney certified the petition and submitted
the proposed ordinance to the Columbus City Council. On October 22, the city
council unanimously voted not to enact the proposed ordinance. The city council
then immediately adopted Ordinance No. 1760-01, which was emergency
legislation to submit the proposed ordinance concerning the Big Darby watershed
to the “electors of the City of Columbus, Ohio pursuant to Section 44 of the City
Charter for their approval or rejection at an election to be held May 7, 2002.” The
ordinance further provided that the “Clerk of this Council shall forthwith serve a
certified copy of this Ordinance on the Franklin County, Ohio Board of Elections.”
Ordinance No. 1760-01 also acknowledged that “pursuant to Columbus City
Charter Section 44 Council is required forthwith to order and provide for the
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submission of such proposed ordinance which has been rejected to a vote of the
electors of the City at the next ensuing election to be held not less than sixty (60)
nor more than one hundred twenty (120) days thereafter; or, if no such election will
be held, at the next ensuing election.” On October 23, Columbus Mayor Michael
Coleman signed Ordinance No. 1760-01.
{¶ 6} McSweeney did not, as required by Ordinance No. 1760-01, serve a
certified copy of that ordinance on the board of elections. Instead, by letter dated
February 13, 2002, almost four months after the city council ordered him to serve
the certified copy of the ordinance, McSweeney notified members of the petitioning
committee, including Ditmars, that he would not certify the initiative to the board
of elections because the petition was insufficient and invalid. McSweeney stated
that the Columbus City Attorney had reviewed the petition and concluded that it
was defective because it lacked the circulators’ affidavits required by Columbus
Charter Section 42.
{¶ 7} On February 15, 2002, Ditmars instituted this expedited election case.
Ditmars requested a writ of mandamus to compel McSweeney and the board of
elections to “fulfill all of the legal duties imposed upon [them] under Columbus
City Council Ordinance No. 1760-01” and “to specifically compel the Board to
place the Proposed Ordinance on the City of Columbus May 7, 2002 ballot.” We
granted the motion of Rocky Lee Blauser and Blauser Family Partnership2 to
intervene as respondents, and the parties filed a joint application to dismiss the
board of elections from the case because the action was premature as to the board,
which had not had the initiative petition certified to or filed with it. On March 5,
we granted the joint application and dismissed the board of elections from this case.
McSweeney and the intervening respondents filed motions to dismiss, and the
2. Rocky Lee Blauser is a partner in Blauser Farm Partnership, which owns a two-hundred-threeacre farm located within the Big Darby watershed, and would be adversely affected by the enactment
of the proposed ordinance.
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parties filed evidence and briefs pursuant to the expedited election schedule in
S.Ct.Prac.R. X(9).
{¶ 8} This cause is now before the court for a consideration of the merits.
{¶ 9} Ditmars requests a writ of mandamus to compel McSweeney to fulfill
his legal duties under Columbus Ordinance No. 1760-01, i.e., to “forthwith serve a
certified copy of [the] Ordinance on the Franklin County, Ohio Board of Elections.”
In order to be entitled to the requested extraordinary relief in mandamus, Ditmars
must establish a clear legal right to have McSweeney comply with Ordinance No.
1760-01, a corresponding clear legal duty on the part of McSweeney to so comply,
and the lack of an adequate legal remedy in the ordinary course of the law. State
ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections (2001), 93 Ohio St.3d 529,
532,
757 N.E.2d 314. Ditmars has established that he lacks an adequate remedy in
the ordinary course of the law, so the dispositive issue is whether he has established
his right to the requested relief and McSweeney’s duty to provide it.
Sufficiency and Validity of Initiative Petition: Affidavit Requirement of
Columbus Charter
{¶ 10} Ditmars first asserts that McSweeney lacked authority to refuse to
certify the initiative to the board of elections because his stated reason for so
refusing is erroneous. McSweeney refused to certify the initiative to the board of
elections because the petition lacked the circulators’ affidavits required by the
charter. Section 42 of the Columbus Charter specifies that affidavits of circulators
must be attached to each initiative petition paper:
“The signatures to any such petition need not all be appended to one paper,
but to each such paper there shall be attached an affidavit by the circulator thereof
stating the number of signers to such part of the petition and that such signatures
were appended thereto in the presence of affiant.” (Emphasis added.)
{¶ 11} Ditmars contends that although the circulator statements in the
initiative petition were unsworn and not declared in the presence of an officer
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authorized to administer oaths, they complied with applicable legal provisions
because Section 42 of the Columbus Charter does not use the terms “notary” and
“notarization,” Section 42 does not conflict with R.C. 3501.38(E),3 and the
circulator statements contained in the initiative petition fully complied with R.C.
3501.38(E). These contentions are meritless.
{¶ 12} The word “affidavit” is not defined in the Columbus Charter.
Undefined language used in a municipal charter must be construed according to its
ordinary and common usage. State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d
1, 5,
716 N.E.2d 1114. Applying the ordinary and common meaning of the word
here, an “affidavit” is a “voluntary declaration of facts written down and sworn to
by the declarant before an officer authorized to administer oaths.” Black’s Law
Dictionary (7 Ed.1999) 58; see, also, Webster’s Third New International Dictionary
(1986) 35, defining “affidavit” as “a sworn statement in writing made esp. under
oath or on affirmation before an authorized magistrate or officer.” Therefore, the
mere fact that Section 42 of the Columbus Charter does not include terms like
“notary” or “notarization” in addition to “affidavit” does not obviate the
requirement that circulators of initiative petitions must declare under oath before
an officer authorized to administer oaths the number of signers on the part petitions
and that those signatures were made in their presence.
{¶ 13} Further, Section 42 of the Columbus Charter does conflict with R.C.
3501.38(E) insofar as the charter provision requires circulator affidavits and the
statute does not. Because the charter provision conflicts with the statute on the
affidavit requirement, the charter provision prevails. “ ‘In matters of local selfgovernment, if a portion of a municipal charter expressly conflicts with parallel
3. R.C. 3501.38(E) provides, “On each petition paper, the circulator shall indicate the number of
signatures contained on it, and shall sign a statement made under penalty of election falsification
that the circulator witnessed the affixing of every signature, that all signers were to the best of the
circulator’s knowledge and belief qualified to sign, and that every signature is to the best of the
circulator’s knowledge and belief the signature of the person whose signature it purports to be.”
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state law, the charter provisions will prevail.’ “ State ex rel. Fenley v. Kyger (1995),
72 Ohio St.3d 164, 165,
648 N.E.2d 493, quoting State ex rel. Lightfield v. Indian
Hill (1994),
69 Ohio St.3d 441, 442,
633 N.E.2d 524; Sections 3 and 7, Article
XVIII, Ohio Constitution.
{¶ 14} Based on the foregoing, McSweeney correctly concluded that the
initiative petition was insufficient and invalid because it did not comply with the
affidavit requirement of Columbus Charter Section 42. This conclusion is
consistent with precedent. See State ex rel. Van de Kerkhoff v. Dowling (1991), 61
Ohio St.3d 55,
572 N.E.2d 653 (referendum petition properly held to be insufficient
because it failed to comply with city charter requirement of circulator affidavits);
State ex rel. Humble v. Brown (1977),
52 Ohio St.2d 9,
6 O.O.3d 77,
368 N.E.2d
294 (local option election petition containing statement of circulator did not satisfy
statutory requirement of a circulator affidavit); State ex rel. Evergreen Co. v.
Franklin Cty. Bd. of Elections (1976),
48 Ohio St.2d 29,
2 O.O.3d 126,
356 N.E.2d
716 (lack of statement that notaries placed referendum petition circulators under
oath established failure to comply with statutory affidavit requirement).
Sufficiency and Validity of Initiative Petition: Liberal Construction of Municipal
Initiative Provisions
{¶ 15} Ditmars contends that liberal construction of the Columbus Charter
requirements for initiative petitions supports his claim that the petition met all
applicable legal requirements. It is true that provisions for municipal initiative or
referendum are liberally construed so as to permit rather than preclude the exercise
of this power. State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio
St.3d 229, 230,
736 N.E.2d 886.
{¶ 16} Nevertheless, the settled rule is that election laws are mandatory and
require strict compliance and that substantial compliance is acceptable only when
an election provision expressly states that it is. See State ex rel. Phillips v. Lorain
Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 539,
757 N.E.2d 319. Section 42
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January Term, 2002
of the Columbus Charter does not expressly state that mere substantial compliance
with its circulator-affidavit requirement is acceptable, and even if it did, the
initiative petition filed by Ditmars and other petitioners did not substantially
comply with that requirement. See Van de Kerkhoff, 61 Ohio St.3d at 59-60,
572
N.E.2d 653 (an unsworn circulator statement in a referendum petition does not
comply, either strictly or substantially, with municipal charter requirement of a
circulator affidavit).
{¶ 17} Therefore, Ditmars’s reliance on the general rule of liberal
construction of municipal initiative provisions does not modify the conclusion that
the petition is invalid because it failed to comply with the unequivocal circulator-affidavit requirement of Section 42 of the Columbus Charter. See State ex rel.
Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182, 186,
724 N.E.2d
771 (no need to liberally construe a statute whose meaning is unequivocal and
definite).
Sufficiency and Validity of Initiative Petition: Estoppel
{¶ 18} Ditmars asserts that McSweeney, who could have discerned the lack
of circulator affidavits in the petition earlier, “waited until the last moment to kill
the election.”
{¶ 19} McSweeney, however, is not estopped from raising the insufficiency
and invalidity of a petition merely because he waited over four months from the
date the signed petition was filed with him to raise the Section 42 defect. Estoppel
does not apply against election officials in the exercise of governmental functions.
See State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections
(1997), 80 Ohio St.3d 302, 307,
686 N.E.2d 238. In other words, the petitioners’
duty to comply with the affidavit requirement of the charter is not conditioned upon
receiving notice from the city clerk that the duty exists. See State ex rel. Jedlicka
v. Cuyahoga Cty. Bd. of Elections (1969),
20 Ohio St.2d 13, 15,
49 O.O.2d 108,
251 N.E.2d 862 (R.C. 3517.10 “imposes a duty on every candidate to file a
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statement of receipts and expenses. That duty is explicit. It is not conditioned upon
receiving the notice from the board that the duty exists. Therefore, the failure of
the board to notify relator does not excuse him from his requirement to file his
statement of receipts and expenses”).
Authority of City Clerk to Determine Sufficiency and Validity of Initiative
Petition Following Enactment of Ordinance Ordering Certification of Initiative
{¶ 20} Ditmars next contends that even if McSweeney correctly concluded
that the initiative petition was invalid because it failed to comply with Section 42
of the Columbus Charter, McSweeney no longer had any authority to so conclude
after the city council had enacted an ordinance ordering him to certify the ordinance
to the board of elections. McSweeney counters that under R.C. 731.28 and Section
42 of the Columbus Charter, McSweeney retained the authority to refuse to certify
the initiative to the board of elections.
{¶ 21} The statutory procedure governing municipal initiative and
referendum in R.C. 731.28 through 731.41 applies to municipalities where the
charter incorporates general law by reference, except where the statutory procedure
conflicts with other charter provisions. Christy v. Summit Cty. Bd. of Elections
(1996), 77 Ohio St.3d 35, 38,
671 N.E.2d 1. Municipal charters must be construed
to give effect to all separate provisions and to harmonize them with statutory
provisions whenever possible. State ex rel. Fattlar v. Boyle (1998),
83 Ohio St.3d
123, 127,
698 N.E.2d 987.
{¶ 22} R.C. 731.28 provides the following procedure for municipal
initiative petitions: (1) when a petition for an initiated ordinance or other measure
is signed by the required number of electors, the city auditor or village 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; (2) within ten days of receiving the petition,
the board of elections is required to determine the number of electors of the
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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; and (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 other 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. See State ex rel. Sinay v. Sodders (1997), 80 Ohio
St.3d 224, 230-231,
685 N.E.2d 754.
{¶ 23} The Columbus Charter initiative procedure, which specifies in
Section 43 that initiative petitions are filed with the city clerk rather than the city
auditor, differs from the foregoing statutory procedure in several significant
respects: (1) within ten days after the filing of the initiative petition, the city clerk
certifies the number of signatures and submits the proposed ordinance to the city
council at its next regular meeting (Section 43); (2) if the petition contains the
required number of signatures, the city council refers the proposed ordinance to a
committee to report at the next regular council meeting (Section 44); (3) if the
council then either fails to take action or rejects the proposed ordinance in whole or
in part, it must order the submission of the proposed ordinance to the electorate at
the next election to be held not less than sixty nor more than one hundred and
twenty days thereafter (Section 44); and (4) the ordinance submitting the proposed
ordinance to a vote of the electorate shall be certified by the city clerk to the proper
election officials immediately upon passage by council (Section 200). In addition,
Section 42 of the charter provides, “The petition and signatures thereto appended,
so verified, shall be presumed to be in all respects sufficient, unless not later than
forty days before the election, it shall be otherwise proven.”
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{¶ 24} After construing these provisions in pari materia and giving effect
to all of the applicable provisions, it is evident that although the charter does not
completely negate the statutory procedure, it nonetheless alters that procedure.
R.C. 731.28 provides that city auditors and village clerks must exercise their
limited, discretionary authority to determine the sufficiency and validity of
initiative petitions when they receive the petitions back from the board of elections.
Here, the city clerk received the petition back from the board of elections before it
had a duty under the charter to certify the number of signatures and submit the
proposed ordinance to the city council. Columbus Charter, Section 43.
McSweeney should have then reviewed the petition and exercised his limited,
discretionary authority to determine the petition’s sufficiency and validity. Instead,
he waited until after council passed an ordinance ordering him to serve a certified
copy of the proposed ordinance to the board of elections.
{¶ 25} Adopting respondents’ contrary interpretation, which would permit
the city clerk to, in effect, trump the city council’s enactment of an ordinance and
the mayor’s approval thereof, would render nugatory the charter provisions
concerning council’s duties concerning initiative matters. And although Section 42
of the charter indicates that the municipal official or entity’s determination of
sufficiency concerning a petition may be made as late as forty days before an
election, it does not purport to negate the other charter provisions.
{¶ 26} Moreover, accepting respondents’ argument that the city clerk can
determine sufficiency even after he has been ordered by city council to serve a
certified copy of the ordinance on the board of elections would contravene the
general rule that only a new ordinance can repeal an existing ordinance. State ex
rel. Commt. for the Referendum of Ordinance No. 3543-00 v. White (2000), 90 Ohio
St.3d 212, 217,
736 N.E.2d 873. Council enacted no new ordinance repealing
Ordinance No. 1760-01 here.
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January Term, 2002
{¶ 27} Therefore, construing the pertinent charter and statutory provisions
in pari materia, McSweeney lacked authority following the enactment of
Ordinance No. 1760-01 to determine that the petition was insufficient. At the time
that the ordinance was enacted, he had a duty under the charter to immediately
certify the ordinance to the proper election officials. Columbus Charter, Section
200. In fact, the ordinance itself ordered McSweeney to forthwith serve a copy of
the ordinance on the board of elections. McSweeney did neither despite his clear
legal duty to do so under the charter and the ordinance.
Laches
{¶ 28} The intervening respondents assert that because Ditmars relies upon
the October 23 mayoral approval of the October 22 enactment of Ordinance No.
1760-01 to support his claim that McSweeney had a duty to serve a certified copy
of the ordinance on the board of elections, Ditmars’s expedited election action for
extraordinary relief in mandamus is barred by laches. This assertion is meritless.
{¶ 29} It is axiomatic that relators in election cases must act with the utmost
diligence. State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio
St.3d 592, 595,
757 N.E.2d 1135. But there is no evidence in this case that Ditmars
delayed in asserting his claims here. He could have reasonably relied upon the
passage of Ordinance No. 1760-01, which indicated that the initiative was
proceeding to be placed upon the May 7 ballot, until McSweeney notified him by
letter dated February 13, 2002, that the initiative had not been certified to the board
of elections. Ditmars then filed this action within two days of the notification letter.
And the date for the preparation of absentee ballots has not yet passed. See R.C.
3509.01. Therefore, under these circumstances, laches does not bar Ditmars’s
mandamus claim.
Conclusion
{¶ 30} Based on the foregoing, Ditmars has established entitlement to the
requested extraordinary relief in mandamus. He has a clear legal right under
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Ordinance No. 1760-01 and the Columbus Charter to have McSweeney
immediately serve a certified copy of the ordinance on the board of elections, and
McSweeney has a corresponding clear legal duty to do so. We therefore grant
Ditmars a writ of mandamus to compel McSweeney to serve a certified copy of
Ordinance No. 1760-01 on the board of elections.4
Writ granted.
MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, RESNICK and COOK, JJ., concur in judgment.
PFEIFER, J., dissents.
__________________
Phillip L. Harmon, for relator.
Janet E. Jackson, Columbus City Attorney, Daniel W. Drake and Susan E.
Ashbrook, Assistant City Attorneys, for respondent Timothy McSweeney,
Columbus City Clerk.
Vorys, Sater, Seymour & Pease L.L.P., Bruce L. Ingram and Matthew R.
Wilson; Crabbe, Brown, Jones, Potts & Schmidt and Larry H. James, for
intervening respondents.
__________________
4. By so holding, we are not ordering the board of elections to place this initiative on the May 7
ballot. In fact, Ditmars concedes that the board of elections is authorized to consider the sufficiency
and validity of the initiative petition. And nothing in the Columbus Charter, R.C. 731.28, or
precedent negates the board’s statutory authority to determine the sufficiency of the petition. See
Sinay, 80 Ohio St.3d at 231,
685 N.E.2d 754 (“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”); see, also, State ex rel. Kennedy v. Cuyahoga Cty. Bd.
of Elections (1976),
46 Ohio St.2d 37,
75 O.O.2d 100,
346 N.E.2d 283, holding that because nothing
in the municipal charter referred to the board of elections or purported to negate the board’s duties,
the board retained its full authority. Finally, the parties jointly dismissed the board of elections from
this mandamus action. Therefore, the board of elections retains its authority to determine the
sufficiency and validity of the initiative petition.
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