tJll1bailAL

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL.STEVE S. BAKER,

Relator/Appellant,

CASE NO. 12 w. 2 V 6. ;jAppeal from the Cuyahoga County Court ofAppeals, Eighth Appellate District

V.

CITY OF BROOK PARK, OHIO, et al.,

Respondents/Appellees.

Court of Appeals Case No. CA 12-098991Common Pleas Case No. CV-12-790980

RELATOR'S/APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

Joseph W. Diemert, Jr. (0011573)Thomas M. Hanculak (0006985)Mark V. Guidetti (0084175)JOSEPH W. DIEMERT, JR.

& ASSOCIATES CO., L.P.A.1360 SOM Center RoadriPmPia,,.l nH 44124.,.., . .,.w..., ..,(440) 442-6800 (telephone)(440) 442-0825 (facsimile)

Neal M. Jamison (0005911)LARGENT, BERRY, PRESTON

& JAMISON CO.1 Berea Commons, Suite 216Berea, OH 44017(440) 816-0600 (telephone)14401 R1 6-(16(14 lfaccimilel

Counsel for Respondents/AppelleesCity of Brook Park, et al.

Counsel for Relator/AppellantSteve S. Baker

^^^ 13 ^^1ft'.

OL-ERK OF COURTSUPREME COURT 0F OHIO

David G. Lambert (0030273)Kelli Kay Perk (0068411)Assistant Prosecuting AttorneysJustice Center - 8th Floor1200 Ontario StreetCleveland, OH 44113(216) 443-7800 (telephone)(216) 698-2270 (facsimile)

Counsel for Respondent/AppelleeCuyahoga County Board of Elections

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST ANDINVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

STATEMENT OF THE CASE AND FACTS

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW 7

PROPOSITION OF LAW NO. I: - 7An initiative petition containing a full and correct text of the proposed changes to the ordinanceor other measure is in compliance with the R.C. 731.31 requirement that "any initiative petitionshall contain a full and correct copy of the title and text of the proposed ordinance or othermeasure* * *"

PROPOSITION OF LAW NO. II: . 14A City Council's inquiry into the substance of an initiative petition is an unconstitutionalexercise of quasi-judicial or judicial authority, giving rise to a clear legal right to mandamus.

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

16

17

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case involves a significant and fundamental right, namely the unconstitutional

exercise of authority by local government officials, preventing petitioned for changes to a city

charter from reaching the ballot for voters to decide upon the structure of their government. This

case presents an opportunity for this Honorable Court to address an issue left unresolved by Ohio

case law.

Appellant respectfully requests this Court to clarify the interpretation and meaning of

R.C. § 731.31, to prevent disenfranchisement and to apprise citizens of the proper technical

format to have their voices heard in reforming local government through the initiative petition

process. If the Court chooses not to address this issue, further confusion for citizens who seek to

reform local government will almost certainly occur in future elections. Furthermore, if the

lower courts' decisions remain unchanged, local officials, including those who may be affected

by changes to a municipal charter, would henceforth be empowered to prevent initiative petitions

from even appearing on a ballot for the citizenry to vote. Such a conclusion would allow local

legislative officials, through a self-interested judicial interpretation of formatting requirements

under R.C. § 731.31, to insulate themselves from the attempts of the people to reform their

government through the petitioning process.

Given this court's role as the primary interpreter of Ohio law, as well as the gravity of the

issues at stake, Appellant respectfully requests the Court to accept jurisdiction over this case, as

it presents an issue of public or great general interest and a substantial constitutional question

about the process of reforming local government under the Ohio Constitution and Ohio law.

3

STATEMENT OF THE CASE

On Friday, September 7, 2012 Appellant, State of Ohio ex rel. Steve Baker ("Appellant"),

filed his Verified Complaint and Petition for Peremptory and Alternative Writ of Mandamus

("Verified Complaint") with the Cuyahoga County Court of Common Pleas in Case No. CV-12-

790980. Appellant sought a writ of mandamus to compel:

• The Appellees City of Brook Park, Ohio ("City"), City Director of Law Neal Jamison ("LawDirector Jamison"), City Council, including City Council President Michael Gamella, CityCouncilman Michael Lane, City Councilwoman Patti Astorino, City Councilman BarryKirksey, Councilman Brian Higgins, Councilman Carl Burgio, Councilman Danny Colonna,Councilman Richard Salvatore (collectively "City Council"), and City Clerk of CouncilMichelle Blazak ("Clerk Blazak") (collectively "City Appellees") to pass an ordinanceproviding for the submission of the amendments to City of Brook Park Charter ("Charter")Sections 3.01, 4.01, 4.03, 8.01 and 8.02 proposed via initiative petition ("Initiative Petition")to the Cuyahoga County Board of Elections, including Board Chairman Jeff Hastings, BoardMember Inajo Davis Chappell, Board Member Mayor Deborah Sutherland, Board MemberEben O. McNair, IV, Board Director Jane M. Platten, and Board Deputy Director PatMcDonald (collectively "Board of Elections");

• Clerk Blazak to certify the sufficiency and validity of the Initiative Petition to the Board ofElections;

• The City Appellees to give notice of the election on the proposed amendments; and

• The Board of Elections to place the proposed amendments on the ballot for the November 6,2012 election, in accordance with the Ohio Constitution and the Ohio Revised Code.

On September 7, 2012, the Court of Common Pleas issued an Order upon Petitioners'

Verified Complaint, ordering, inter alia, the Board of Elections to accept the Order as either the

filing of the necessary municipal legislation and Initiative Petition, or as an extension of the

filing deadline through September 18, 2012, pending the Court's final determination on the

issues raised in the Verified Complaint. The Court's September 7, 2012 Order was filed by the

Appellant with the Board of Elections prior to 4:00 p.m. on September 7, 2012.

The City Appellees filed a Motion to Dismiss on September 13, 2012. Counsel for all

parties appeared before the Court on September 13, 2012, at which time the parties agreed to

4

resolve the matter, which involved only legal issues, through the submission of briefs, to consist

of the City Appellees' Motion to Dismiss and Appellant's opposition thereto, to be submitted for

the Court's consideration no later than Friday, September 14, 2012. (See Final Judgment Entry.)

Appellant timely submitted its Brief in Opposition to Appellees' Motion. (Id.) The Court of

Common Pleas thereafter issued a Final Judgment Entry, journalized on September 18, 2012,

dismissing Appellant's Verified Complaint. (Id.) On September 25, 2012, Appellant filed a

Notice of appeal with the Court of Appeals of Ohio, Eighth Appellate District, from the Trial

Court's September 18, 2012 Final Judgment Entry. On October 29, 2012, the Court of Appeals

affirmed the Trial Court's judgment dismissing Appellant's Verified Complaint in State ex rel.

Baker v. Brook Park, 2012-Ohio-5043. (October 29, 2012 Opinion.)

STATEMENT OF FACTS

Appellant is a taxpayer of the State of Ohio and member of the Brook Park Charter

Amendment Committee who circulated three initiative petitions in the City. One of the three

initiative petitions proposed the amendment of City Charter Sections 3.01, 4.01, 4.03, 8.01 and

8.02 ("Initiative Petition"). Beginning in or around June 2012, Appellant, along with others,

„l.,+ 0,7 tL.o T.^;+;.,+;..o Do^;^; .,, ^^rrt PIP/^^AYO in Rrnnlr Parlr Tha Tnitiativt^ PAtitinn cnntAtnP,(jcircuiawu LuC uuLiaLiv^. i^ uuvi. cuuv..^ ___---------

a full and correct copy of the title and text of the proposed Charter amendment measures, and

complied with all other requirements imposed by law to be placed on the November 6, 2012

ballot.

On August 14, 2012, Petitioners filed a certified copy of the Initiative Petition, containing

38 part petitions, with Clerk Blazak, who acknowledged receipt thereof. On Monday, August

27, 2012, Clerk Blazak filed the Initiative Petition with the Board of Elections to assess the

sufficiency and validity of the signatures contained thereon. The Board of Elections returned the

5

initiative petitions to Clerk Blazak on Thursday, August 30, 2012, informing the City that 626

signatures were required per each petition, and that the Initiative Petition contained 870 valid and

sufficient signatures.

At a September 4, 2012 City Council Caucus meeting, Law Director Jamison distributed

a "Memo" to all members of City Council concerning, inter alia, the Initiative Petition proposing

to amend City Charter Sections 3.01, 4.01, 4.03, 8.01 and 8.02. Law Director Jamison's Memo

indicated that City Council has no duty to submit the proposed amendments to City Charter

Sections 3.01, 4.01, 4.03, 8.01 and 8.02, based on his opinion that the Initiative Petition did not

comply with R.C. § 731.31's requirement that petitions contain "a full and correct copy of the

title and text of the proposed ordinance or other measure." Specifically, the September 4, 2012

Memo, at pg. 2, stated that "either the title of this proposed change [to Charter Section 4.01] is

incorrect or that the [...Initiative Petition] fails to contain the full text of the proposed changes for

,Section 4.01 of the Charter." Law Director Jamison's Memo further opined, at pg. 3, as follows:

The language in the [Initiative Petition] does not make any provision for the Subsectionthat mandates that the Clerk of Council shall keep an accurate and complete journal ofCouncil's proceedings. The language in the [Initiative Petition] furthermore, does notmake any provision for the mandate that the City shall use a codified ordinance system.

... In the present case one could interpret the petitions that have been submitted tothis Council to mean that everything currently set forth in Section 4.01 of thecharter is being amended so that the only language left in that section wouldconcern the composition and number of persons that would serve on Council. As aresult, there would be no designation as to how long the term of office would be forthe members of Council. Furthermore, one could also interpret the [InitiativePetition] to mean that everything currently set forth in Section 4.03 of the charter isbeing amended so that the only remaining language in that section would concernthe organization of Council and the appointment of a Clerk of Council.Consequently, the requirement for the Clerk of Council to keep an accurate andcomplete journal of Council's proceedings would be abolished. The codified

ordinance system for the City would also cease to exist.

After reviewing Law Director Jamison's Memo, City Council did not place the Charter

6

amendments proposed by the Initiative Petition on the Agenda for the September 4, 2012 City

Council meeting, and therefore did not pass an ordinance providing for the submission of the

amendments to City of Brook Park Charter Sections 3.01, 4.01, 4.03, 8.01 and 8.02 proposed via

initiative petition to the Board of Elections. Clerk Blazak similarly did not certify the sufficiency

and validity of and file the Initiative Petition with the Board of Elections.

LAW AND ARGUMENT

PROPOSITION OF LAW NO. I:

AN INITIATIVE PETITION CONTAINING A FULL AND CORRECT TEXT OF THEPROPOSED CHANGES TO THE ORDINANCE OR OTHER MEASURE COMPLIESWITH THE R.C. 731.31 REQUIREMENT THAT "ANY INITIATIVE PETITIONSHALL CONTAIN A FULL AND CORRECT COPY OF THE TITLE AND TEXT OFTHE PROPOSED ORDINANCE OR OTHER MEASURE***"

The Court of Appeals improperly refused to issue the Writ of Mandamus sought by

Appellant, despite the fact that Appellant's Verified Complaint clearly demonstrated that

Appellees have a clear, affirmative and absolute legal duty to perform the official acts specified

in Appellant's Verified Complaint as mandated by Ohio Constitution Article XVIII, Sections 8

and 9, and R.C. § 731.28; that the Appellant has a clear legal right to have the Appellees perform

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Appellees' failure to perform their duty.

The Court of Appeals improperly ignored its paramount concern - the General Assembly's

intent in enacting R.C. § 731.31 - as well as controlling law, when it affirmed the Trial Court's

dismissal the Verified Complaint. The purpose of R.C. § 731.31 "is to fairly and substantially

present the issue to electors in order to avoid misleadin2 them." Stutzman v. Madison Cty.

Bd. of Elections (2001), 93 Ohio St.3d 511, 516, 2001-Ohio-1624. (upholding validity of

petition which contained misstatement of acreage amount specified in proposed ordinance

7

language). Similarly, the Trial Court improperly ignored the Ohio Supreme Court's instruction

that "the right of initiative should not be denied `* * * on the basis of some mere technical

irregularities which will not interfere with that riaht and disenfranchise the voters on the

choice,"' State ex rel. Stern v. Quattrone (1981), 68 Ohio St.2d 9, 10 (citing State ex rel.

Williams v. Brown (1977), 52 Ohio St.2d 13, 20; State ex rel. Polycn v. Burkhart (1973), 33 Ohio

St.2d 7), and the mandate that courts must liberally construe such measures so as to permit the

exercise of the power and to promote rather than prevent or obstruct the object sought to be

attained. The Court of Appeals upheld the Trial Court's dismissal of the Verified Complaint

despite the foregoing authority and despite its own determination that [t]he reason for this

requirement [in R.C. 731.31] is to "ensure that the issue is fairly and substantially presented

to the electors and to avoid misleading electors," as well as the Trial Court's own

determination that the "...language that has been omitted is not part of the proposed change

and has no real impact on the issues to be presented..." (Trial Court Final Judgment Entry.)

Here, the lower courts concluded that the City had no duty to submit the amendments to

City Charter Sections 3.01, 4.01, 4.03, 8.01 and 8.02 proposed by the Initiative Petition to the

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with R.C. § 731.31's requirement that the petitions contain "a full and correct copy of the title

and text of the proposed ordinance or other measure." (emphasis added). Ohio Constitution

Article XVIII, Sections 8 and 9, and R.C. § 731.28 impose a clear legal duty on the City

Appellees to pass an ordinance providing for the submission of the Charter amendments

proposed via the Initiative Petition to the Board of Elections, and to certify the sufficiency and

validity of and file a valid Initiative Petition with the Board of Elections. Ohio Constitution

Article XVIII, Sections 8 and 9, and R.C. § 731.28 further impose a clear legal duty on the Board

8

of Elections to submit the proposed amendments for the approval or rejection of voters on the

November 6, 2012 election ballot. The fact that Appellant has no other adequate remedy in the

ordinary course of law was not contested in the proceedings below. See R.23. City Appellees'

Motion to Dismiss; R. 36, Trial Court Final Judgment Entry.

The sole "fatal defect" in the Initiative Petition determined to exist by the Trial Court is

. that the Petition "does not, however, contain the entire text of the sections to be amended." R.36,

Trial Court Final Judgment Entry. However, a review of the Petition reveals this is precisely

what the Initiative Petition contains - 100% of the text of the sections to be emended, i.e., the

proposed changes to Charter Sections 4.01 and 4.03. The omission of portions of Charter

Sections 4.01 (b) and 4.03 (d) and (e) only served to prevent voter confusion, as the portions not

being amended were omitted via the commonly-understood use of asterisks.

This Court has explicitly ruled on the issue of whether including only the portions to be

amended concerning a provision of the city's charter (or other measure) constitutes a defect in

contravention of the statutory "title and text" requirement sufficiently substantial to interfere

with the people's right of initiative, and prevent the proposed amendment from being submitted

^ ••________to,

ine_ voters. ^,!___uiitu__l1u^^.I^^^ ^^,_ ^rcc ,.,7u,«^^^^* ;..1^a1 t for. Fvi ^ii

,- tl^iio ^ casenoaa ;e.o set ^.,^..^ in.. .^^eat fnrt^'1 ^'ivr .-^•^•..^--^7nrrnt7 v. __Ni1lPnhrllnd

(1921), 103 Ohio St. 286, where the Court was called upon, given comparable facts, to interpret

the identical requirement of the statutory predecessor of R.C. 731.31, G.C. 4227-4, which

mimics the pertinent language:

Any initiative or referendum petition may be presented in separate parts but eachpart of any initiative petition shall contain a full and correct copy of the title andtext of the proposed ordinance or other measure and each part of any referendumpetition shall contain the number and a full and correct copy of the title of theordinance or measure sought to be referred. *°k*

G.C. 4227-4, R.C. 731.31

9

In Cincinnati v. Hillenbrand, an initiative petition was submitted for Certification by City

Council, but the petition only contained the proposed full and correct text of the pertinent

sections of a lengthy municipal franchise ordinance. The Hillenbrand court held the submission

of full text of the proposed changes to the relevant portions of the lengthy ordinance was

sufficient, and fully complied with the requirement of G.C. 4227-4, similar to current R.C. §

731.31. In so holding, the court noted that, "filt would be manifestly cumbersome and

difficult of practical operation in many cases where the people desire to supplement an

ordinance already in existence, such as a franchise-ordinance, to set out the full text of the

ordinance which it is desired to supplement." (Id. at 297-298.) The court went on to conclude

that "this proposed initiative ordinance is a substantial compliance with the statutory provisions

whichhave been passed to provide for the exercise of such power." (Id.) In the present case, the

subject portions of the charter dealt with the organizational structure of the city council and were

similarly lengthy and cumbersome. Thus, in the precisely analogous case Hillenbrand, the Ohio

Supreme Court held that irrelevant, unchanged portions of a proposed ordinance need not be

included on an initiative petition to fully comply with the "title and text" statutory requirement

1 in'f '1 T 1

containea R . C . x^, i^i.^^. zu.

As noted above, the Ohio Supreme Court has repeatedly held that "the right of initiative

should not be denied `* * * on the basis of some mere technical irregularities which will not

interfere with that right and disenfranchise the voters on the choice. "' Quattrone, 68 Ohio St.2d

at 10 (citing Williams, 52 Ohio St.2d at 20; Burkhart, 33 Ohio St.2d 7). Indeed, "courts must

avoid unduly technical interpretations that impede public policy in election cases." Stutzman, 93

Ohio St.3d 511. Because the policy involved in the instant matter is a preeminent constitutional

right reserved to the people of each municipality, the lower courts were required to liberally

10

construe R.C. § 731.31 so as to permit the exercise of the power and to promote rather than

prevent or obstruct the object sought to be attained." Id. at 5. This is precisely what the lower

courts failed to do. Instead, the lower courts' decisions adopt a unfounded compliance standard

for R.C. § 731.31 which retards, rather than promotes, the exercise of the right of initiative, as

expressed by hundreds of residents of the City of Brook Park, Ohio.

As noted above, the purpose of R.C. § 731.31 "is to fairly and substantially present the

issue to electors in order to avoid misleading them." In compliance with the Ohio Supreme

Court's mandate to uphold citizens' right of initiative and not disenfranchise the voters on an

initiative choice, Ohio courts have struck down initiative petitions for failure to comply with

R.C. § 731.31 only where voters are likely to be mislead.

Tn State ex rel. Hackworth v. Hughes (2002), 97 Ohio St.3d 110, 2002-Ohio-5334, the

most factually-analogous case aside from Hillenbrand, the proposed charter amendment

language set forth in the initiative petition used asterisks to omit a portion of the charter

provision not being amended. Although the Ohio Supreme Court denied a petition for a writ of

mandamus seeking to compel a city council to place a charter amendment proposed via initiative

^olo^.t;^,r, hollnt tha rn„rt tnn^r nn with the netitioners' use of the1J^it1t1V11 Vll Qll IApVV1111116 V1VV^1V11 V(.11V, 41av vVa.u^ vvla aav av..»^ ..___ .__- r_._

asterisk to omit portions of the charter section not being amended. Rather, the Hackworth court

determined that the petition language, which emphasized only three of the 6 amendments to the

charter section by capitalizing letters, "could easily mislead petition signers to believe that

only... three emphasized changes were being proposed by the amendment." The Ohio Supreme

Court in Hackworth court further noted that "the petition was presented to each signer and to

City Council as purporting to contain only certain amendments."

11

Unlike the petition language involved in Hackworth, the validity of the Initiative Petition

language in the instant matter is evident since the proposed amendments to Charter sections 4.01

and 4.03 are set forth clearly and concisely in such a manner as to rp event voter confusion by

including only the proposed amendments to those Charter sections, and omitting the irrelevant,

lengthy portions of the charter sections for which no amendment was proposed. In addition, it is

clear that voters are not likely to interpret the Initiative Petition language as deleting subsection

"(b)" of Charter section 4.01 or subsections "(e)" and "(d)" of Charter section 4.03 since the

amendment language explicitly identifies the language being eliminated by striking through that

language and underlining the new language. These are common writing tools which prevent any

voter confusion concerning the proposed amendments. The Trial Court itself recognized this:

"The Petition very clearly marks, underlines, and crosses out all the proposed changes..." R. 36,

Trial Court Final Judgment Entry. As such, petition signers were not likely to interpret the

Initiative Petition language as deleting omitted subsections where no proposed amendment was

made since the amendment language clearly identifies the language being eliminated by striking

through that language and underlining the new language.

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the full text of the proposed amendment, but also provides voters with a title of reference to

prevent any confusion. Here, the titles of Charter sections 4.01 and 4.03 set forth in the Initiative

Petition further prevent voter confusion by alerting the voter of the contents of the measure. For

instance, regarding Charter section 4.01, the title "Composition and Term" makes clear that the

proposed amendment to section 4.01 did not include a deletion of subsection "(b)" concerning

the term of members of City Council.

12

The conclusion reached by the Trial Court and the Court of Appeals is contrary to law as

set forth above and also unsupported by fact - there is no indication in the Record that any

resident had difficulty understanding the proposed Charter amendments, either during or after the

public inspection period. Tellingly, the Trial Court did not conclude that voters are likely to be

misled by the language set forth in the Initiative Petition, determining only that voters "could"

misunderstand the language. (Trial Court Final Judgment Entry.) The determination that voters

"could" be mislead is insufficient to prevent the proposed amendments to Charter sections 4.01

and 4.03 from being placed in front of the voters.

In cases addressing R.C. § 731.31's text and title requirement, the entire title and/or text

of the proposed measure was completely omitted from the initiative petition language. See, e.g.,

See State ex rel. Becker v. City of Eastlake (2001), 93 Ohio St. 3d 502, 507 ("Relators' petition

specifies no title for the proposed charter amendment adding a section..."); State ex rel. Esch v.

Lake County Bd. ofElections (1991), 61 Ohio St. 3d 595, 597 (holding petition defective because

it failed include title of proposed ordinance: "More so than the text, the title immediately alerts

signers to the nature of the proposed legislation. As this notice helps prevent the signers from

t_:^^ _: l a k ^k k L..1 a tL.,^ tl,o ; ,, oto„t r,atitinri miict rnnta a titlP. FnT t^1P. proposedUGlll^' llllA1GLL, we " - tiviu ia^ ui^+ io^aurvuavii iiiwv.. ....__...+.__in_ --_ ____ r_ _r __---

ordinance as required by R.C. 731.31."). Omissions similar to those involved in Becker and

Esch are not involved in this matter, where the Initiative Petition sets forth the complete title and

the entire text of each and every proposed amendment to Charter sections 4.01 and 4.03.

Also, as indicated above, the Trial Court and Court of Appeals failed to apply controlling

law when considering whether the Initiative Petition substantially complied with R.C. § 731.31

since it contained the complete title and full text of the proposed amendments to Charter section

4.01 and 4.03. This matter falls squarely within the exception recognized by the Ohio Supreme

13

Court to the general rule requiring strict compliance with election laws, even where the law does

not expressly provide for substantial compliance. The Supreme Court has applied a substantial

compliance standard in those circumstances where allowing substantial compliance does no

harm to the purposes underlYing the election requirement and the public interest is served. State

ex rel South Western City School District Bd. of Edn. v. Franklin County Bd. of Elections (App.

10 Dist. 2004), 2004-Ohio-4893, ¶ 17 (citing Stutzman v. Madison Cty. Bd. of Elections (2001),

93 Ohio St.3d 511, 514, 2001-Ohio-1624 ("Absolute 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."); State ex rel. Fite v. Saddler

(1991), 62 Ohio St.3d 170, 172; Stern v. Cuyahoga Cty. Bd. of Elections (1968), 14 Ohio St.2d

175, 180. Bd. of Edn. of Ashville Village School Dist. v. Briggs (1926), 114 Ohio St. 415, 420).

Here, the purpose underlying R.C. § 731.31 is not harmed since the Initiative Petition clearly and

concisely set forth the proposed amendments to Charter Sections 4.01 and 4.03, and fairly and

substantially presented the proposed amendments to Charter Sections 4.01 and 4.03 to the voters.

See Stutzman, 93 Ohio St.3d at pg. 5.

rl(VrVrJ1111J1^IT Vi' La`1 rV7 \TV• II.

A CITY COUNCIL'S INQUIRY INTO THE SUBSTANCE OF AN INITIATIVEPETITION IS AN UNCONSITUTIONAL EXERCISE OF QUASI-JUDICIAL ORJUDICIAL AUTHORITY, GIVING RISE TO A CLEAR LEGAL RIGHT TO

MANDAMUS.

A city council's constitutional authority to review the sufficiency of initiative petitions is

limited to matters of forrn, not substance. State ex rel. Polcyn v. Burkhart (1973), 33 Ohio St.2d

7, 10-11; State ex rel. Commt. for the Charter Amendment Petition v. Avon (1998), 81 Ohio St.3d

590, 1998-Ohio-598. A city council's authority to determine if all applicable statutory

requirements have been met is therefore more restricted than that of a board of elections. See

14

State ex rel. Watkins v. Quirk (1978), 59 Ohio App.2d 175. A city council may not engage in

judicial or quasi-judicial determinations. See Id. The power to determine what substantive

errors warrant the withdrawal of the whole issue from the electorate, whether they appear on the

face of the petitions or not, is a judicial function. Ohio Constitution Article XVIII § 9 does not

contemplate nor vest such a judicial function in legislative authorities. State ex rel. Polcyn v.

Burkhart, at 10-11, State ex rel Citizens for a Better Portsmouth v. Sydnor (1991) 61 OS 3ra 49,

52, Morris v. Macedonia City Council (1994) 71 OS 3ra 52, 55. Moreover, when a municipal

legislative authority erroneously fails to submit a charter amendment when it is presented with a

legally sufficient petition, relief in mandamus is available to order placement on the pertinent

election ballot. State ex rel. Commt. for the Charter Amendment, City Trash Collection v.

Westlake (2002), 97 Ohio St.3d 100, 2002-Ohio-5302, ¶ 39; State ex rel. Commt. for the Charter

Amendment Petition v. Hamilton (2001), 93 Ohio St.3d 508; State ex rel. Becker v. City of

Eastlake (2001), 93 Ohio St. 3d 502. Such relief in mandamus is appropriate following a

municipality's improper refusal to certify an issue to the board of elections, even when such

relief requires a special election. See, Morris v. Macedonia City Council (1994) 71 OS 3ra 52, 55;

^ Commt. r_ _ the___a_ /'';s.. T.....1 r^nn^l 07

State ex rel. C, Jor t/Z l,nur6er zirrieriurrceric, ulLy t / ClJ/L l-V6LGl 110I6 V. rr GJLLIL/^C kc..v-,1, -

Ohio St.3d 100, 2002-Ohio-5302.

As reflected by the excerpts from the Law Director's September 4 Memo relied on by

City Council and bolded in the Statement of Facts set forth above, the City Appellees improperly

went beyond form and analyzed the substance of the proposed amendments in determining the

validity of the Initiative Petition. As the Court of Appeals noted, "the proposed amendments

dealt with the composition and structure of city council, and arguably, city council acted in its

own self-interest." State ex rel. Baker v. Brook Park, 2012-Ohio-5043 at ¶ 13. As such, the Court

15

of Appeals improperly affirmed the Trial Court's dismissal of Appellant's Verified Complaint

after determining that "[t]he initiative petition only contained the subsections [of the charter] in

which the amended language appeared." Furthermore, the Court of Appeals erred when it based

its denial of a writ for a special election on the cursory conclusion that "such costly procedures

do not warrant extraordinary relief in this matter." Therefore, the ruling set forth by the Court of

Appeals is in contravention of controlling law and must be reversed.

CONCLUSION

Based on the foregoing reasons, Appellant requests that this Court accept jurisdiction

over this appeal, reverse the judgment of the Court of Appeals, as appropriate relief includes

issuance of a writ of mandamus compelling the City Appellees to pass an ordinance certifying

the initiative petition to the board of elections for placement on a special election ballot.

Respectfully submitted,

JOSEPH . D M ; JR. (0011573)THOMAS M. HANCULAK (0006985)MARK V. GUIDETTI (0084175)Joseph W. Diemert, Jr. & Associates Co., L.P.A.136v S.O.M. Center Road

Cleveland, Ohio 44124(440) 442-6800 (telephone)(440) 442-0825 (facsimile)Email: receptionist@diemertlaw.com

Counsel for Relator/AppellantSteve S. Baker

16

CERTIFICATE OF SERVICE

I certify that a copy of this.Notice of Appeal was sent by ordinary U.S. Mail on this 12t"

day of December, 2012 to the following:

Neal M. Jamison (0005911)LARGENT, BERRY, PRESTON

& JAMISON CO.1 Berea Commons, Suite 216Berea, OH 44017

Counsel for Respondents/AppelleesCity of Brook Park, et al.

David G. Lambert (0030273)Kelli Kay Perk (0068411)Assistant Prosecuting AttorneyJustice Center - 8th Floor1200 Ontario StreetCleveland, OH 44113

Counsel for Respondent/AppelleeCuyahoga County Board of Elections

/ kLJoseph W. Dieme A; . 0 .11573)Thomas M. Hanculak (0006985)Mark V. Guidetti (0084175)

^jVLLnselfol Relato:,%eppellant

J:\2012\FiREFIGI-ITERS\Brook Park\Initiative Petition\Mandamus\Research\Memo in support of jurisdiction.doc

17

r

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

STATE OF OHIO, EX REL. }STEVE S. BAKER, ^

tRELATOR, }

(V5. }

^

CITY OF BROOK PARK, OHIO, }ET AL. {

}RESPONDENTS. (

CASE NO. 790980

JUDGE ROBERT C. McCLELLAND

FINAL JUDGMENT ENTRY

This matter arose with the filing of a verified complaint seeking a Writ of Mandamusordering the Respondents to prepare and approve a resolution certifying an Initiative Petitionproposing amendments to the City Charter Sections 3.01, 4.01, 4.03, 8.01, and 8.02 {hereinafter"Petition"} to the Cuyahoga County Board of Elections (hereinafter "Board"). The verifiedcomplaint was filed on September 7, 2012, in the afternoon and there was a 4:00 p.m. deadlinefor the filing of such resolution. The Court was unable to hold any formal hearing and issued atemporary order requiring the Board to accept the Court's order in the place of such filing andproviding a brief period of time to allow the official filing, should the Court rule thatRespondents must file the Petition. The parties met with the Court on September 13, 2012 anddetermined that the Court could rule based on the briefs of the parties. The Relator was givenunti14:30 p.m. September 14, 2012, to file a responsive brief which the Court did receive.

As will be discussed below, based upon the verified complaint, the pleadings, thebriefinp-, and the applicable case law, the Court is denying the requested Writ of Mandamus andnotified counsel for both parties and the Board of its decision during the evening hours ofSeptember 14, 2012. That decision is memorialized and explained in greater detail below.

The entire decision in this case centers upon a determination whether the Petitioncomplies with the requirements of ORC 731.31. That section, in part, requires that, "each part ofany initiative petition shall contain a full and correct copy of the title and text of the proposedordinance or other measure." Interestingly, there are two other Initiative Petitions requestingamendments to the City Charter and both of those are in compliance with this statute. It is solelythis Petition that has been challenged.

The Petition very clearly marks, underlines, and crosses out all the proposed changes incertain sections of the Charter provisions at issue. It does not, however, contain the entire text ofthe sections to be amended. The three asterisks placed under the sections of the proposedchanges, are presumably there to show that there is more language contained in that Chartersection. That is the fatal defect in the Petition. Even though the language that has been omitted

i in^u^^^^Maii___

dr V.

is not part of the proposed change, and has no real impact on the issues to be presented foramendment, it is missing and the cases on this issue make it clear that the language of ORC731.31 is provided to insure that those voting on this type of issue have the entire section beforethem for review and to avoid any confusion or misunderstanding. The voter couldmisunderstand and believe that they were seeing and voting on an amendment where the portionshown on the Petition was the entirety of that Charter section when, in fact, there is morelanguage in that Charter section and that language is intended to remain even if the amendment is

adopted. See, State Ex Rel. Hacktivorth v. Hughes, 97 Ohio St. 3d 110, State Ex Rel. Thurn v.

Cuyahoga County Board of Elections 72 Ohio St. 3d 289.

The only case which supports allowing an Initiative Petition to be filed without strict

compliance with ORC 731.31 is Stutzman v, Madison County Board of Elections 93 Ohio St. 3d

51•1, which dealt with a minor difference in acreage listed in the Initiative Petition (89.45 acresvs. 89.245 acres). That minor difference was not deemed to have the danger of anymisunderstanding or confusion in that case. Here, we are not talking about a very minordifference. Instead, we are dealing with entire sections of the Charter Provisions at issue being

absent from the Petition.

Mandamus is an extraordinary writ only to be granted when there is a clear legal duty toact. Here, Respondents did precisely what they were required to do under the law, they deniedthe request to prepare and file a resolution with the Board for the filing of the Petition due to thedefects in the Petition. The Court finds that there is no basis for the granting of mandamus in

this matter,

Therefore, the Court vacates its prior order of September 7, 2012, which is now moot as aresult of the final judgment of this Court. The Court denies the Relator's request for a writ ofmandamus and dismisses the case with prejudice at the Relator's cost. This is a final judgment,

no just reason for delay.

IT IS SO ORDERED.

ZZ1c: f/'1L

ROBERT C. MCCLELLAND'JUDGE

llECeIVEo F®R F!l.INra

SEP I 8 Z41ZcLERK

GERA ^ • peputy8y

^ . . .

SE^

A copy of the foregoing Order was sent on the day of September, 2012 by

regular U.S. mail, postage pre-paid to:

Mark V. Guidetti, Esq.1360 S.O.M. Center Rd.Mayfield Hts., Ohio 44124

Neal Jamison, Esq.6161 Engle Rd.Brookpark, Ohio 44142

David G. Lambert, Esq.Justice Center - 8's' FloorProsecutors Office1200 Ontario St.Cleveland, Ohio 44 i 13

Jane Platten, DirectorCuyahoga County Board of Elections2925 Euclid Ave.Cleveland, Ohio 44115

3

..... ........ ......

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

STATE EX REL. BAKER ,PLAINTIFF

V.

CASE NO: 790980

JUDGE ROBERT C. McCLELLAND

CITY OF BROOK PARK, OHIO, et al.DE FEN DANTS.

{

}

^}

t

ORDER TO BOARD OF ELECTIONS

The Plaintiff's having filed for a Writ of Mandamus and/or an Alternative Writ of Mandamus

concerning the filing of an initiative Petition for proposed amendments to the Charter of the City of

Brook Park, and due to the fact that the filing must be made no later than 4:00 today, September 7,

2012, the Court finds that the Plaintiff was unable to file this Writ any earlier than today. The Court will

hold a hearing on the merits of the Writ within the next 10 days. In order for there to be compliance

with the statutory filing requirements the Court orders the Board of Elections to accept this Order as

either the filing of the Resolution and the Initiative Petitions today, September 7, 2012, or as an

extension of the filing deadline up to and including Septembeel8, 2012, for filing pending the final

determination of the court on the sufficiency of the petitions.

It is hereby ordered that the Cuyahoga County Board of Elections accept this Order in lieu of and as the

filing of the Initiative Petitions of the Brook Park Charter Amendment Committee, concerning Brook Park

Charter Provisions, 3.01, 4.01, 4.03, 8.01, and 8.02.

7-

Dated -l

C,

Judize Robert C. McClelland

RECE@VED F^^ ^^^^^NQ

3 E P

GE. ^ ,RS OLEFiKgy ^ , //G !^[7epLr£Y

^EP07'12 Ptl 3:44 CVS

CUYAHOGA COUNTYBOARD OF ELECTIONS

Jeff Hastings Inajo Davis Chappell Eben O. (Sandy) McNair, N Deborah Sutherland Jane M. Platten

Chairman Director

Receipt

Date received: September 7, 2012

Mark V. GuidettiDiemert & Associates1360 S.O.M. Center RoadMayfield Heights, OH 44124

Phone: 440.442.6800Email: mvguidetti@diemertlaw.com

Received:

Pat McDonaldDeputy Director

Case No. 790980: Court order for the Board of Elections to accept in lieu of and as the filing of theInitiative Petitions of the Brook Park Charter Amendment Committee, concerning Brook Park

Charter Provisions, 3.01. 4.01, 4.03, 8.01, and 8.02.

Received by the Board of Elections: Brent E. Lawler

-keCandidate & Petition Services - Ballot Services Division

2925 Euclid Avenue • Cleveland, Ohio 44115-2497 •(216) 443-3298

boe.cuyahogacounty.us • Ohio Relay Service 711

[Cite as State ex rel. Baker v. Brook Park, 2012-Ohio-5043.1

Court of tppiuth of !1)JjioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 98991

STATE OF OHIO, EX REL.STEVE S. BAKER

RELATOR-APPELLANT

vs.

CITY OF BROOK PARK, OHIO, ET AL.

RESPONDENTS-APPELLEES

JUDGMENT:AFFIRMED

Civil Appeal from theCuyahoga County Common Pleas Court

Case No. CV-790980

BEFORE: S. Gallagher, J., Boyle, P.J., and Sweeney, J.

RELEASED AND JOURNALIZED: October 29, 2012

ATTORNEYS FOR APPELLANT

Mark V. GuidettiJoseph W. Diemert, Jr.Thomas M. HanculakJoseph W. Diemert, Jr. & Associates, L.P.A.

1360 S.O.M. Center RoadCleveland, OH 44124

ATTORNEYS FOR APPELLEES

For City of Brook Park, et al.

Neal M. JamisonLargent, Berry, Preston & Jamison Co.1 Berea CommonsSuite 216Berea, OH 44017

For Cuyahoga County Board of Elections

Timothy J. McGintyCuyahoga County Prosecutor

Bv^ David Lambert-., -Kelli Kay Perk

Assistant Prosecuting AttorneysJustice Center - 8th Floor1200 Ontario StreetCleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

Relator-appellant, Steve S. Baker, appeals the judgment of the Cuyahoga County Court of

Common Pleas that denied his request for a writ of mandamus and dismissed the action.

For the reasons stated herein, we affirm.

{¶2} On September 7, 2012, appellant filed a verified complaint and petition for

peremptory writ in the first instance or alternative writ of mandamus. Appellant sought

to compel respondents-appellees, city of Brook Park, Ohio ("Brook Park"), its law

director, its city council members, and its clerk of council (collectively "the Brook Park

appellees") to pass an ordinance providing for the submission to the Cuyahoga County

Rnarrl nf Rlar.tinnc ("RnR"1 of nrnnnsed amendments to the Citv of Brook Park Charter,

Sections 3.01, 4.01, 4.03, 8.01, and 8.02. Appellant further sought to compel the clerk of

council to certify the sufficiency and validity of the initiative petition to the BOE, to

compel Brook Park to give notice of the election on the proposed amendments, and to

compel the BOE to place the proposed amendments on the ballot for the November 6,

2012 election.l

' The Brook Park appellees as well as the chairman, members, and directors of the CuyahogaCounty Board of Elections ("the BOE appellees") were named as respondents in the complaint.

{¶3} Appellant is a taxpayer and member of the Brook Park Charter Amendment

Committee who circulated three initiative petitions that proposed amendments to the

Brook Park Charter. The second and third initiative petitions were found valid, and the

proposed charter amendments set forth therein have been placed on the ballot for the

general election of November 6, 2012. However, the first initiative petition, which is at

issue in this matter, was found to have fatal defects and did not proceed to the ballot.

{¶4} The first initiative petition (hereafter "the initiative petition"), which

contained numerous part petitions, proposed amendments to the Brook Park Charter,

Sections 3.01, 4.01, 4.03, 8.01, and 8.02. A certified copy of the initiative petition was

filed with Brook Park's clerk of council on August 14, 2012. After the initiative petition

was filed with the clerk of council and held ten days for public inspection, the clerk of

council submitted the initiative petition to the BOE to determine the number of valid

signatures. The BOE found a sufficient number of valid signatures and returned the

r.at;t;nn tn tli e nlPrk nf r.nnncil nn Ansnict 10 _ 20 12_---

{¶5} The initiative petition was placed on the agenda for the September 4, 2012

city council caucus meeting. At that meeting, the law director distributed a

memorandum in which he advised city council that the first initiative petition contained

fatal defects because it did not comply with the requirement of R.C. 731.31 that "each

part of any initiative petition shall contain a full and correct copy of the title and text of

the proposed ordinance or other measure." Therefore, he expressed that the first

initiative petition was invalid and that city council was not required to submit the

proposed amendments to the voters. Ultimately, the first initiative petition was not

placed on the agenda for the regular city council meeting on September 4, 2012, and no

further action was taken on this petition.

{¶61 Upon the filing of appellant's verified complaint on September 7, 2012, the

trial court issued an order to the BOE instructing it to accept the order either as the filing

of the resolution and initiative petition or as an extension of the filing deadline until

September 18, 2012, pending a final determination by the court of the sufficiency of the

initiative petition. After the matter was submitted on briefs by the parties, the trial court

issued a decision on September 18, 2012. The trial court found no basis for granting

mandamus and dismissed the action. The court found in pertinent part:

The entire decision in this case centers upon a determination whetherthe Petition complies with the requirements of ORC 731.31. That section,

in part, requires that, "each part of any initiative petition shall contain a fulland correct copy of the title and text of the proposed ordinance or other

measure." * * *.

Tl,a Patitinn -%7P,-v c1Par1v mark-,_ underlines. and crosses out all the

proposed changes in certain sections of the Charter provisions at issue. It

does not, however, contain the entire text of the sections to be amended.

The three asterisks placed under the sections of the proposed changes, are

presumably there to show that there is more language contained in that

Charter section. That is the fatal defect in the Petition. Even though the

language that has been omitted is not part of the proposed change, and has

no real impact on the issues to be presented for amendment, it is missing

and the cases on this issue make it clear that the language of ORC 731.31 is

provided to insure that those voting on this have the entire section before

them for review and to avoid any confusion or misunderstanding. ***.

{¶7} Appellant filed this appeal, raising two assignments of error for our review.

Under his first assignment of error, appellant claims the Brook Park appellees acted

improperly in determining the initiative petition was invalid. Appellant further claims

that the initiative petition complied with R.C. 731.31 because the omitted portions of the

charter sections did not contain the proposed changes and there is no indication from the

record that voters would be confused or misled by the language in the petition.

{¶8} City council's constitutional authority to review the sufficiency of initiative

petitions is limited to matters of form, not substance, and council cannot inquire into

questions not apparent on the face of the petitions themselves or which require the aid of

witnesses to determine. Morris v. City Council of Macedonia, 71 Ohio St.3d 52, 56, 641

AT T^ 7.i 1 0'7S !1 QQdI rin^ ri-m,,,r;1 iq not renuired to submit a nronosed charterIr.L.LU lvi..r `iii .J. -.J -" --"- -- 1------- -- . .

amendment to the electorate unless it is satisfied with the sufficiency of the initiative

petition and that all statutory requirements are fairly met. State ex rel. Becker v.

Eastlake, 93 Ohio St.3d 502, 506, 756 N.E.2d 1228 (2001).

{¶9} In this case, the initiative petition was found invalid because it did not comply

with R.C. 731.31, which requires any initiative or referendum petition contain a "full and

correct copy of the title and text of the proposed ordinance or other measure[.]" While

the law director advised city council of fatal defects, it was apparent from the face of the

initiative petition that the entire text of the subject charter sections was not included.

Therefore, city council did not act improperly in determining the sufficiency of the

petition.

{¶10} Generally, the election statutes, including R.C. 731.31, are mandatory and

require strict compliance unless they expressly allow substantial compliance. Stutzman

v. Madison Cty. Bd. of Elections, 93 Ohio St.3d 511, 514, 2001-Ohio-1624, 757 N.E.2d

297. The "full and correct copy of the title and text" requirement of R.C. 731.31 applies

to charter-amendment petitions. State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110,

2002-Ohio-5334, 776 N.E.2d 1050, ¶ 32. The reason for this requirement is to ensure

that the issue is fairly and substantially presented to the electors and to avoid misleading

electors. Stutzman at 515. Thus, it is generally required that an initiative petition

contain a full and correct copy of the title and text of the proposed ordinance in order to

satisfy these objectives. Hackworth at ¶ 33; State ex rel. Thurn v. Cuyahoga Cty. Bd. of

7,) nh;L, cr ld '?RA ?9? i^4A N F. 2r1 1205 (1995)_

{¶11} Nonetheless, the Ohio Supreme Court has recognized that courts must avoid

unduly technical interpretations that impede public policy in election cases. Stutzman at

514. In Stutzman, the court found a slight misstatement in the acreage listed in an

ordinance was not grounds for invalidating a referendum petition because such a de

minimis error did not mislead the electors. Id. at 515.

{¶12} Unlike Stutzman, this case did not involve a slight misstatement, rather,

entire portions of the subject charter sections were omitted. The initiative petition only

contained the subsections in which the amended language appeared. While Section 4.01

of the Brook Park Charter was titled "Composition and Term," no language was included

in the petition as to the term of office for members of city council, which is set forth in

subsection (b) of the provision. Further, with regard to Section 4.03, "Organization of

Council," only three of the five subsections were set forth.

{¶13} We recognize that the proposed amendments dealt with the composition

and structure of city council, and arguably, city council acted in its own self-interest.

Despite finding the initiative petition was facially infirm, the Brook Park appellees did

not raise the issue with appellant at the time the initiative petition was filed or during the

ten days that it was held for public comment. However, we are not aware of any such

duty on the part of respondents and this may not have mattered given the impending time

limitations for the upcoming election. We further recognize that appellant was

responsible for complying with the statutory requirements and that he did not file the

"atitinn „ntil milj-Ausn7Ct Tn the end- citv council had no dutv to submit the

proposed charter amendments to the electorate unless all statutory requirements were met.

See State ex rel. Hackworth, 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, at ¶

31.

{¶14} We must reiterate that this is a mandamus action. To be entitled to the

extraordinary relief in mandamus, appellant has the burden to demonstrate a clear legal

right to relief. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of

Elections, Slip Opinion No. 2012-Ohio-4267, ¶ 27. When the iegal right is doubtful,

mandamus may not rightfully issue. State ex rel. Gerspacher v. CoffinbeNry, 157 Ohio

St. 32, 37, 104 N.E.2d 1 (1952). Because appellant's right to relief is less than clear, the

trial court properly denied the writ.

{¶15} Upon our review, we decline to compel the Brook Park appellees to pass an

ordinance and certify the initiative petition to the board of elections. We do not believe

mandamus should issue to require the BOE appellees to print and mail new ballots,

including to voters overseas, and to alter its existing election structure. See State ex rel.

Friedlander v. Myers, 128 Ohio St. 568, 569, 192 N.E. 737 (1934) (refusing to issue a

writ of mandamus where election ballots had been printed and absentee voting had

already commenced). Nor are we inclined to order a special election at a later date.

Early voting is under way, with over 1,647 ballots already having been cast. We find

such costly procedures do not warrant extraordinary relief in this matter.

{¶16} We overrule appellant's two assignments of error.

{^i7} Judgm^. ent affirn:ed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., andJAMES J. SWEENEY, J., CONCUR