Stutzman v. Madison County Board of Elections

Lundberg Stratton, J. On April 23, 2001, the Council of the Village of Plain City, Ohio, enacted Ordinance No. 06-01, which rezones approximately 89.425 acres of land owned by relator, Henry J. Stutzman, to RS3 Single Family Residential District. The title of Ordinance No. 06-01 is: — 512 — “AN ORDINANCE AMENDING THE ZONING MAP OF THE VILLAGE OF PLAIN CITY, OHIO, AT THE APPLICATION OF DOMINION HOMES, AS TO APPROXIMATELY 89.425 ACRES OF LAND LOCATED WEST OF U.S. ROUTE 42 AND SOUTH OF PROPERTY OWNED BY HOMEWOOD HOMES, INC.” (Boldface sic.) On May 10, 2001, a referendum petition on Ordinance No. 06-01 was filed with the Plain City Clerk-Treasurer. The petitioners requested that Ordinance No. 06-01 be submitted to the village electors for their approval or rejection at the November 6, 2001 general election. The referendum petition specified: “The following is a full and correct copy of the title and number of the Ordinance: “Ordinance No. 06-01 “AN ORDINANCE AMENDING THE ZONING MAP OF THE VILLAGE OF PLAIN CITY, OHIO, AT THE APPLICATION OF DOMINION HOMES, AS TO APPROXIMATELY 89.45 ACRES OF LAND LOCATED WEST OF U.S. ROUTE 42 AND SOUTH OF PROPERTY OWNED BY HOMEWOOD HOMES INC.” (Boldface sic.) The referendum petition, printed on a form prescribed by the Secretary of State of Ohio in November 1996, also contained the following statement: “THE PENALTY FOR ELECTION FALSIFICATION IS IMPRISONMENT FOR NOT MORE THAN SIX MONTHS OR A FINE OF NOT MORE THAN $1,000, OR BOTH.” (Boldface sic.) After respondent Madison County Board of Elections (“board”) verified that the referendum petition contained sufficient valid signatures, the Plain City Clerk-Treasurer certified the petition to the board for placement of the referendum on Ordinance No. 06-01 on the November 6, 2001 general election ballot. On August 30, 2001, Stutzman filed a written protest with the board challenging the referendum petition on Ordinance No. 06-01. Stutzman contended that the petition was defective because it failed to state the correct title of the ordinance in that the acreage listed on the petition (89.45) differed from the acreage in the ordinance (89.425) and the petition did not include a comma in the name of the owner of property to the north of the rezoned property (“Homewood Homes, Inc.”). Stutzman further claimed that the referendum petition failed to contain the mandatory election falsification language set forth in R.C. 3599.36. On September-12, 2001, the board held a hearing on Stutzman’s protest and then took the matter under advisement. On September 13, the board issued a decision denying Stutzman’s protest. The board concluded that the misstatements of the acreage and omission of the comma in Homewood Homes, Inc. were not defects requiring rejection of the petition because there was no evidence that — 513 — the petition conveyed a confusing or mistaken impression about the substance of the zoning ordinance that was the subject of the referendum petition. The board further concluded that the referendum petition contained the election falsification language required by law and that the “new election falsification language referred to by [the] protest took effect on August 28,2001.” On September 14, 2001, ie., only one day after the board’s decision, Stutzman filed this expedited election action for a writ of prohibition to prevent respondents, the board and its members, from submitting to the Plain City electorate the referendum on Ordinance No. 06-01. Respondents filed a motion to dismiss,1 and after Stutzman filed evidence and a merit brief, respondents failed to file a merit brief, which was due on Friday, September 28, 2001. See S.Ct.Prac.R. X(9). This cause is now before the court for a consideration of the merits. Stutzman requests a writ of prohibition to prevent the submission of Ordinance No. 06-01 to the Plain City electors at the November 6, 2001 general election. In order to be entitled to a writ of prohibition, Stutzman must establish that (1) the board is about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 241, 736 N.E.2d 893, 896. It is uncontroverted that Stutzman has satisfied the first and third of these requirements, so the dispositive issue is whether Stutzman established that the board’s exercise of quasi-judicial authority in denying the protest was unauthorized by law. In determining if Stutzman established this'requirement, the applicable standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions in denying Stutzman’s protest. State ex rel. Crossman Communities of Ohio, Inc. v. Greene Cty. Bd. of Elections (1999), 87 Ohio St.3d 132, 135-136, 717 N.E.2d 1091, 1095. Stutzman asserts that the board abused its discretion and acted in clear disregard of applicable legal provisions in denying the protest. For the reasons that follow, we hold that the board neither abused its discretion nor clearly disregarded applicable law in denying Stutzman’s protest and deny Stutzman’s request for extraordinary relief in prohibition. — 514 — R.C. 731.31; Full and Correct Copy of Title of the Ordinance Stutzman initially contends that the board abused its discretion and acted in clear disregard of R.C. 731.31 by upholding the validity of the referendum petition although it did not include “a full and correct copy of the title of the ordinance or other measure sought to be referred.” R.C. 731.31 provides that “each part of any referendum petition shall contain * * * a full and correct copy of the title of the ordinance or other measure sought to be referred.” Stutzman claims that R.C. 731.31 requires strict compliance and that the petition did not strictly comply with R.C. 731.31 because it misstated the acreage involved in the title of the ordinance as 89.45 acres instead of the 89.425 acres actually listed in the title of the ordinance. In general, election statutes in Ohio are mandatory and require strict compliance unless the statute specifically permits substantial compliance. State ex rel. Wilson v. Hisrich (1994), 69 Ohio St.3d 13, 16, 630 N.E.2d 319, 322; State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 169, 602 N.E.2d 615, 617. In accordance with this general rule, because R.C. 731.31 does not expressly allow substantial compliance, we normally require strict compliance with it, Crossman Communities, 87 Ohio St.3d at 137, 717 N.E.2d at 1096, including the requirement that the petition contain a full and correct copy of the title of the ordinance. State ex rel. Esch v. Lake Cty. Bd. of Elections (1991), 61 Ohio St.3d 595, 597, 575 N.E.2d 835, 836-837. Nevertheless, we have also at times held that courts must avoid unduly technical interpretations that impede public policy in election cases. See, e.g., State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 3, 598 N.E.2d 1149, 1151. The policy involved here is the preeminent constitutional right of referendum “reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action.” Section If, Article II of the Ohio Constitution. We must liberally construe provisions for municipal referendum so as to permit the exercise of the power and to promote rather than prevent or obstruct the object sought to be attained. See State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio St.3d 229, 230-231, 736 N.E.2d 886, 888; State ex rel. Oster v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 480, 756 N.E.2d 649. In applying these competing considerations to the R.C. 731.31 requirement that referendum petitions contain a “full and correct copy of the title of the ordinance,” we are guided by the precept that our paramount concern in construing any statutory requirement is the legislative intent in enacting the statute. In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 265, 725 N.E.2d 271, 277. In construing the comparable R.C. 731.31 requirement that initiative petitions — 515 — contain a “full and correct copy of the title and text of the proposed ordinance,” we have held that the purpose of this requirement is to fairly and substantially present the issue to electors in order to avoid misleading them. Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 38, 671 N.E.2d 1, 4 (“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”); State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections (1997), 80 Ohio St.3d 165, 167, 685 N.E.2d 224, 226. Rejecting the petition here because of a slight misstatement in the acreage listed in the ordinance does not further the legislative purposes of fairly presenting the ordinance to electors and preventing them from being misled. In this regard, the title of the ordinance states that the property involved is approximately 89.425 acres, and the referendum petition specifies the title of the ordinance as involving property that is approximately 89.45 acres. There is no evidence nor is there any reasonable argument that this de minimis error could have misled electors to sign a petition that they would not have signed had the correct acreage been listed. The same conclusion is warranted for Stutzman’s other contention concerning the lack of a comma in the corporate name of Homewood Homes, Inc. As we have previously held in an election case in which a petitioner had faded to comply with a technical election requirement, “‘[ajbsolute compliance with every technicality should not be required * * * unless such complete and absolute conformance to each technical requirement * * * serves a public interest and a public purpose.’ ” (Ellipses sic.) State ex rel. Fite v. Saddler (1991), 62 Ohio St.3d 170, 173, 580 N.E.2d 1065, 1067, quoting Stern v. Cuyahoga Cty. Bd. of Elections (1968), 14 Ohio St.2d 175, 180, 43 O.O.2d 286, 289, 237 N.E.2d 313, 317. Invalidating the referendum petition here based on the hypertechnical grounds suggested by Stutzman serves no public interest or public purpose, including the legislative purpose of the R.C. 731.31 requirement of a “full and correct copy of the title of the ordinance.” Moreover, Stutzman’s reliance on Esch and State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153, to claim that the referendum petition is fatally defective is misplaced. Esch involved an initiative petition that contained no title of the proposed ordinance, and Burech addressed a referendum petition that contained neither the title nor the text of the resolution, as required by R.C. 305.32. The title is not completely missing from the petition here. And both of these cases emphasized the potential for misleading petition signers, which is nonexistent here. Therefore, the board neither abused its discretion nor clearly disregarded R.C. 731.31 in denying Stutzman’s protest. — 516 — R.C. 3599.36; Election Falsification Statement Stutzman next contends that the board abused its discretion and acted in clear disregard of R.C. 3599.36 by upholding the validity of the referendum petition even though the petition failed to include the election falsification statement required by that statute. We hold that the board neither abused its discretion nor clearly disregarded R.C. 3599.36, albeit for different reasons than those expressed by the board. The referendum petition included the language specified in former R.C. 3501.38(J), which provided prior to August 28, 2001: “All declarations of candidacy, nominating petitions, or other petitions under this section shall be accompanied by the following statement in boldface capital letters. THE PENALTY FOR ELECTION FALSIFICATION IS IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BOTH.” (Boldface sic.) 143 Ohio Laws, Part II, 1940,1941. Before December 9,1997, R.C. 3599.36 similarly provided that election falsification was a misdemeanor of the first degree and that “[e]very paper, card, or other document relating to any election matter which calls for a statement to be made under penalty of election falsification shall be accompanied by the following statement in boldface capital letters: ‘The penalty for election falsification is imprisonment for not more than six months, or a fine of not more than one thousand dollars, or both.’ ” 138 Ohio Laws, Part II, 4570,4748. Effective December 9, 1997, however, the General Assembly enacted Am.Sub. S.B. No. 116, which amended R.C. 3599.36 to provide: “Whoever violates this section is guilty of election falsification, a felony of the fifth degree. “Every paper, card, or other document relating to any election matter that calls for a statement to be made under penalty of election falsification shall be accompanied by the following statement in bold face capital letters: Whoever commits election falsification is guilty of a felony of the fifth degree.’ ” 147 Ohio Laws, Part IV, 7608, 7667. The referendum petition here, which required circulators’ statements to be made under penalty of election falsification, see R.C. 3501.38(E), contained the language in former R.C. 3501.38(J) instead of the language required by R.C. 3599.36. Under R.C. 1.52(A), “If statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.” See, also, State v. Rush (1998), 83 Ohio St.3d 53, 58, 697 N.E.2d 634, 638. Former R.C. 3501.38(J) is irreconcilable with R.C. 3599.36. Unlike the current version, which became effective on August 28, 2001, former — 517 — R.C. 3501.38(J) retained the penalties for a first-degree misdemeanor even though effective December 9, 1997, the General Assembly amended R.C. 3599.36 to make election falsification a fifth-degree felony, which carries harsher penalties than those specified in former R.C. 3501.38(J). See, e.g., R.C. 2929.14(A)(5) and 2929.18(A)(3)(e). Therefore, under R.C. 1.52(A), R.C. 3599.36, the statute later in date of enactment, prevails over former R.C. 3501.38(J). The board was consequently mistaken in determining that the petition contained the appropriate election falsification language. Nevertheless, as we noted in our previous discussion analyzing R.C. 731.31, in construing the applicable election falsification petition requirement, our paramount concern is the legislative intent. In re Election Contest, 88 Ohio St.3d at 265, 725 N.E.2d at 277. In State ex rel. Griffin v. Krumholtz (1982), 70 Ohio St.2d 125, 24 O.O.3d 234, 435 N.E.2d 1110, we held that the absence of the statutorily mandated election falsification statement in a referendum petition rendered the petition defective. In that case, we specified that the purpose of the election falsification statement is “to insure not only that the signers and circulators of the petition be made aware of the fact that election falsification is a crime but also that significant sanctions are imposed for violations of the election laws.” Id. at 127, 24 O.O.3d at 235, 435 N.E.2d at 1111. This purpose is sufficiently advanced here by the inclusion of the language used by the petitioners, which was on the form supplied by the office of the Secretary of State and was consistent with the language of former R.C. 3501.38(J), which the General Assembly had failed to amend at the same time it amended R.C. 3599.36. In other words, the language, though technically incorrect because of the amendment to R.C. 3599.36, ensured that petition signers and circulators were aware that election falsification is a crime and that it carries significant sanctions. While the actual statutory penalty was erroneous, the petition satisfied the purposes of the statutory requirement. We note that in the period from December 9, 1997 until August 28, 2001, when there were confusing, conflicting “mandatory” statutory requirements for the appropriate election falsification statement, petitioners seeking to exercise their important constitutional right of referendum reasonably relied on former R.C. 3501.38(J) and used a form prescribed by the Secretary of State. There is no evidence or even a contention by Stutzman that the persons who either signed or circulated the petition appreciated the distinction between “imprisonment for not more than six months or a fine of not more than $1,000, or both” and “a felony of the fifth degree.” Nor is there evidence or any argument that persons would not — 518 — have signed or circulated the petition if the petition instead contained the language required by R.C. 3599.36. We note, however, that with the August 28, 2001 amendment to R.C. 3501.38(J), both it and R.C. 3599.36 now require the same language, and that petitioners should follow this requirement in the future in order to avoid any invalidation of their petition. But under the limited circumstances evident here, where the different statutes provided mixed signals from the General Assembly, the petitioners’ constitutional right of referendum should not be thwarted by their technical violation of R.C. 3599.36. The board neither abused its discretion nor clearly disregarded applicable law by refusing to invalidate the referendum petition on this basis. Conclusion Based on the foregoing, Stutzman has failed to establish his entitlement to the writ. The board acted properly by denying his protest and submitting the referendum issue to the electorate. The board specifically found that there was no evidence that the petition conveyed a confusing or mistaken impression about the substance of the zoning ordinance that was the subject of the referendum petition. The petition included the notification of the potential for criminal prosecution and sanctions for election falsification. There was also no evidence or any contention by Stutzman of any willful or knowing misrepresentation in order to persuade persons to sign the petition. Accordingly, we deny the requested writ of prohibition and permit the board and its members to proceed with submitting the referendum on Ordinance No. 06-01 to the Plain City electorate. Under the unique circumstances of this case, a contrary holding would constitute an unreasonable restriction on the constitutional right of referendum reserved to the people of each municipality. See State ex rel. Commt. for the Referendum of Ordinance No. 3543-00 v. White (2000), 90 Ohio St.3d 212, 218, 736 N.E.2d 873, 878 (court’s duty to avoid unreasonable or absurd results). Writ denied. Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., and Cook, J., dissent. Footnotes [1] We note that respondents’ motion to dismiss is inappropriate in expedited election cases, see State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 111, 712 N.E.2d 696, 700, and we will therefore proceed to consider the merits of this cause.