State Ex Rel. Kilby v. Summit County Board of Elections

[Cite as State ex rel. Kilby v. Summit Cty. Bd. of Elections, 133 Ohio St.3d 184, 2012-Ohio-
4310.]

THE STATE EX REL. KILBY v. SUMMIT COUNTY BOARD OF ELECTIONS ET AL.
[Cite as State ex rel. Kilby v. Summit Cty. Bd. of Elections,
133 Ohio St.3d 184, 2012-Ohio-4310.]
Elections—Proposed amendments to city charter—Separate ballot issues for
separate amendment subjects not required by charter—Approval of ballot
language—R.C. 3505.06(E) and 3501.11(V)—Proposed changes to terms
of office, election, and compensation of city officers fairly described.
(No. 2012-1515—Submitted September 19, 2012—Decided September 20, 2012.)
IN MANDAMUS AND PROHIBITION.
__________________
Per Curiam.
{¶ 1} This is an expedited election case for writs of mandamus and
prohibition to find Akron Ordinance No. 271-2012 to be invalid and to order two
of the respondents, the Summit County Board of Elections and the secretary of
state of Ohio, to reconvene forthwith and adopt ballot language that properly
describes the proposed charter amendment for the November 6, 2012 general
election. Because relator has not established his entitlement to the requested
extraordinary relief, we deny the writs.
Facts
{¶ 2} On July 30, 2012, the council of the city of Akron enacted
Ordinance No. 271-2012, which authorized and directed the submission to city
electors at the November 6, 2012 general election of a proposal to amend Sections
28.2 and 53 of the Akron Charter to eliminate the cost of an extra election, to elect
all council members at the same election, and to limit raises for council members
and the mayor. The proposed amendment provides:
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SECTION 28.—COMPOSITION OF COUNCIL,
TERMS, SALARIES AND VACANCIES.
2. IN ORDER TO ELIMINATE THE COSTS OF
EXTRA ELECTIONS, IN NOVEMBER, 2013, EACH
COUNCIL MEMBER-AT-LARGE AND EACH WARD
COUNCIL MEMBER SHALL BE ELECTED FOR A TWO
YEAR TERM. Commencing with the regular Municipal election
to be held in November, 19692015, and thereafter each
Councilman at large shall be elected for a four year term the term
of each ward Councilman MEMBER shall be two FOUR years.
The term of each Councilman MEMBER shall commence on the
first day of January following his/HER election, and shall continue
until his/HER successor is elected and qualified. The salary of
members of Council shall be fixed by the Council by ordinance
AND SHALL NOT INCREASE ON A CALENDAR YEAR
BASIS ANY MORE THAN PRIVATE INDUSTRY
WORKERS RECEIVE AS MEASURED BY U.S.
DEPARTMENT OF LABOR STATISTICS.
SECTION 53.—SALARY.
The salary of the Mayor shall be fixed by ordinance AND
SHALL NOT INCREASE ON A CALENDAR YEAR BASIS
ANY MORE THAN PRIVATE INDUSTRY WORKERS
RECEIVE AS MEASURED BY U.S. DEPARTMENT OF
LABOR STATISTICS. At all times, the Mayor shall receive a
salary higher than the salary payable to any other employee or
officer of the City of Akron, excluding the Director of Public
Health.

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(Boldface and capitalization sic.)
{¶ 3} Ordinance No. 271-2012 provided that the ballot language for the
charter-amendment issue be substantially in the following form:

PROPOSED CHARTER AMENDMENT
CITY OF AKRON
A Majority Affirmative Vote is
Necessary for Passage
Shall Sections 28.2 and 53 of the Charter of the City of Akron be
amended to eliminate the cost of an extra election, to elect all
Council members to a four year term at the same election and to
limit raises for members of Council and the Mayor?
YES
NO

{¶ 4} By letter dated August 8, 2012, relator, Akron Ward 2 Councilman
Bruce Kilby, submitted a written protest against the submission of the proposed
charter amendment to the city’s electors at the November 6, 2012 election. Kilby
is a resident and elector of Akron. Kilby requested that the board not allow the
proposed charter amendment to be submitted to the city’s electors in its present
form. He noted that a previous charter amendment proposed by the city council
that would have increased the terms of ward council members in Akron from two
to four years had failed in a November 7, 2006 election vote.
{¶ 5} In his protest, Kilby claimed that the ballot language proposed by
Ordinance No. 271-2012 does not properly describe the proposed charter
amendment and is inaccurate and misleading. He claims that (1) the cost savings
of not holding an extra election and limiting pay raises are emphasized by bold
print and placement at the beginning and the end of the ballot language, and

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significant charter changes increasing terms for ward council members and
eliminating staggered elections are not emphasized, (2) the requested ballot
language states only that it would elect all council members to a four-year term
and not that at-large council members would first be elected to a two-year term, it
gives no context to electors about the current terms for ward council members,
and it does not state that it would increase the term from two to four years, and (3)
the ballot language mixes the unrelated issues of increasing council member terms
and limiting pay raises into one proposal instead of presenting them to the
electorate as separate ballot issues.
{¶ 6} On August 20, respondent Summit County Board of Elections held
a hearing on Kilby’s protest and considered the ballot language proposed by the
Akron Council in Ordinance No. 271-2012. On August 28, the board voted to
adopt the ballot language set forth in Ordinance No. 271-2012. On August 29,
respondent Secretary of State Jon Husted approved the ballot language.
{¶ 7} On September 6, eight days after the secretary of state’s final
approval of the ballot language, Kilby filed this expedited election case. Kilby
seeks writs of mandamus and prohibition finding Ordinance No. 271-2012 to be
invalid and ordering respondents the board of elections and the secretary of state
to reconvene forthwith and adopt ballot language that properly describes the
proposed charter amendment so that the amendment may appear on the November
6 election ballot. In the alternative, Kilby requests writs of mandamus and
prohibition to compel the board of elections and the secretary of state to cause the
ballots to be printed with ballot language prescribed by this court. Kilby also
named Akron as a respondent. Respondents filed answers, and on September 19,
Kilby submitted his evidence and merit brief. Because of the imminent R.C.
3509.01(B)(1) deadline for boards of elections to have absentee ballots for
eligible overseas and absent uniformed-services voters printed and ready for use,
we now decide this case.

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Analysis
Mandamus and Prohibition
{¶ 8} Kilby has established that he lacks an adequate remedy in the
ordinary course of law because of the closeness of the November 6 general
election. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374,
926 N.E.2d 617, ¶ 25. For the remaining requirements, “ ‘[i]n extraordinary
actions challenging the decisions of the Secretary of State and boards of elections,
the standard is whether they engaged in fraud, corruption, or abuse of discretion,
or acted in clear disregard of applicable legal provisions.’ ” State ex rel. Husted v.
Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9
(mandamus), quoting Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d
216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11 (prohibition). In the absence of any
evidence or allegation of fraud or corruption on the part of the board of elections
or the secretary of state, the dispositive issue is whether the board and the
secretary abused their discretion or clearly disregarded applicable law by denying
Kilby’s protest and approving the city council’s ballot language for the proposed
charter amendment.
Akron Charter, Section 34
{¶ 9} Kilby first contends that the board of elections abused its discretion
and clearly disregarded Section 34 of the Akron Charter because the proposed
charter amendment contains more than one subject—the election of council
members for two-year terms at the 2013 election and for four-year terms in 2015,
the salary-raise limitations for council members, and the salary-raise limitations
for the mayor.
{¶ 10} Akron Charter, Section 34 provides the general procedure for the
Akron Council to adopt legislation, stating that the city council “shall act only by
ordinance or resolution” and stating:

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Each proposed ordinance or resolution shall be introduced
in written or printed form and shall not contain more than one
subject, which shall be clearly stated in the title; except that
general appropriation ordinances may contain the various subjects
and accounts for which moneys are to be appropriated and a
consent agenda consisting of any number of ordinances or
resolutions may be voted upon, provided that any Councilmember
or the Mayor may remove an item therefrom.

{¶ 11} Kilby’s contention that the proposed charter amendment violates
Section 34 of the Akron Charter because it includes multiple subjects lacks merit.
By its plain language, Section 34 applies only to ordinances and resolutions and
not to proposed charter amendments.
{¶ 12} Moreover, any claims challenging the validity of the proposed
charter amendment are premature when made before the amendment is approved
by the electorate. Compare State ex rel. DeBrosse v. Cool, 87 Ohio St.3d 1, 6,
716 N.E.2d 1114 (1999) (“Any claims alleging the unconstitutionality or illegality
of the substance of the proposed ordinance, or action to be taken pursuant to the
ordinance when enacted, are premature before its approval by the electorate”);
State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 169, 685
N.E.2d 224 (1997) (claim that proposed ordinance violates R.C. 731.19 by
containing more than one subject is premature prior to the electorate approval of
the ordinance).
{¶ 13} Nor does this case involve a provision requiring a separate vote on
separate amendments. See Ohio Constitution, Article XVI, Section 1 (separate-
vote requirement for legislatively initiated state-constitution amendments); State
ex rel. Willke v. Taft, 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536.

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{¶ 14} Finally, the ordinance itself does not violate the Section 34
requirement that each proposed ordinance or resolution not contain more than one
subject. The ordinance contains one subject—the submission of the proposed
charter amendment to the electorate at the November 6 election.
{¶ 15} Therefore, the board of elections did not abuse its discretion or
clearly disregard Akron Charter, Section 34 by rejecting Kilby’s argument.
Ballot Language
{¶ 16} Kilby next asserts that the board of elections and the secretary of
state abused their discretion and clearly disregarded R.C. 3505.06(E) and
3501.11(V) by approving the condensed ballot language for the proposed charter
amendment that was submitted by the Akron Council in Ordinance No. 271-2012.
{¶ 17} R.C. 3505.06(E) provides:

The questions and issues ballot need not contain the full
text of the proposal to be voted upon. A condensed text that will
properly describe the question, issue, or an amendment proposed
by other than the general assembly shall be used as prepared and
certified by the secretary of state for state-wide questions or issues
or by the board for local questions or issues. If other than a full
text is used, the full text of the proposed question, issue, or
amendment together with the percentage of affirmative votes
necessary for passage as required by law shall be posted in each
polling place in some spot that is easily accessible to the voters.

{¶ 18} Under R.C. 3501.11(V), the board of elections must transmit
approved ballot language for the local question to the secretary of state for the
secretary’s “final approval” of the language.

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{¶ 19} “R.C. 3505.06 serves to inform and protect the voter and
presupposes a condensed text which is fair, honest, clear and complete, and from
which no essential part of the proposed amendment is omitted.” State ex rel.
Minus v. Brown, 30 Ohio St.2d 75, 81, 283 N.E.2d 131 (1972). In evaluating the
propriety of ballot language for local issues like charter amendments, we have
applied the same three-part test that we apply in determining the validity of ballot
language for a proposed constitutional amendment:

“First, a voter has the right to know what it is he is being
asked to vote upon. State, ex rel. Burton, v. Greater Portsmouth
Growth Corp. (1966), 7 Ohio St.2d 34, 37 [218 N.E.2d 446].
Second, use of language which is ‘in the nature of a persuasive
argument in favor of or against the issue * * *’ is prohibited. Beck
v. Cincinnati (1955), 162 Ohio St. 473, 475 [124 N.E.2d 120].
And, third, ‘the determinative issue * * * is whether the cumulative
effect of these technical defects [in ballot language] is harmless or
fatal to the validity of the ballot.’ State, ex rel. Williams, v. Brown
(1977), 52 Ohio St.2d 13, 19 [368 N.E.2d 838]; State, ex rel.
Commrs. of the Sinking Fund, v. Brown (1957), 167 Ohio St. 71
[146 N.E.2d 287].”

Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137, 141, 519 N.E.2d
347 (1988) (charter amendment), quoting State ex rel. Bailey v. Celebrezze, 67
Ohio St.2d 516, 519, 426 N.E.2d 493 (1981) (state-constitution amendment).
{¶ 20} With the foregoing test providing the framework for the court’s
analysis, we now consider Kilby’s specific claims.
{¶ 21} Kilby first contends that Section 2 of Ordinance No. 271-2012,
which describes the language of the proposed charter amendment, is misleading

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because it specifies, “In order to eliminate the costs of extra elections, in
November, 2013, each Council member-at-large and each ward Council member
shall be elected for a two year term.” But it appears that this language is in the
text of the proposed charter amendment itself rather than the approved ballot
language describing it, so Kilby’s first contention is premature until the
amendment is adopted by the electorate. DeBrosse, 87 Ohio St.3d at 6, 716
N.E.2d 1114; see also State ex rel. Citizen Action for a Livable Montgomery v.
Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d
902, ¶ 43.
{¶ 22} Kilby next contends that the ballot language approved by the board
of elections and the secretary of state is a “sales pitch” and “electioneering,”
which amounts to a “persuasive argument in favor of the proposed charter
amendment.” But Kilby does not suggest that the ballot language, which states,
“Shall Sections 28.2 and 53 of the Charter of the City of Akron be amended to
eliminate the cost of an extra election, to elect all Council members to a four year
term at the same election and to limit raises for members of Council and Mayor,”
is inaccurate. In fact, the proposed amendment would eliminate the cost of an
extra election, ultimately result in the election of all council members to four-year
terms at the same election, and limit raises for the mayor and council members.
This ballot language is distinguishable from the statement of mere unauthorized
speculation in the ballot language that the court held to be defective in Beck, 162
Ohio St. 473, 124 N.E.2d 120, at paragraphs two and three of the syllabus. The
language at issue in Beck was “argumentative, misleading and coercive” because
it stated that if a tax levy passed, there would be no city income tax in two
upcoming years. See Commrs. of Sinking Fund, 167 Ohio St. at 74, 146 N.E.2d
287, distinguishing the ballot language found to be invalid in Beck.
{¶ 23} Kilby next contends that “the reference to saving money in the
year 2013 is false because there would be no savings of money until the year

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2017, in which year there would be no municipal election.” The approved ballot
language, however, states only that the proposed charter amendment would
“eliminate the costs of an extra election” and does not specify that this savings
would occur in 2013 rather than at some future date. Again, if Kilby is attacking
the substantive text of the proposed amendment, his challenge must await the
passage of the amendment. DeBrosse, 87 Ohio St.3d at 6, 716 N.E.2d 1114.
{¶ 24} Kilby further contends that the ballot language is misleading
because it does not state that the election for mayor will be held concurrently with
the election of council members in 2015, that the terms of at-large council
members would be changed from four years to two years beginning in 2014 and
through 2016, after which they would again be four-year terms, and that there will
no longer be staggered terms. He also claims that the effect of these changes
would be to prevent any incumbent at-large council member who now serves a
staggered term from running against the mayor at subsequent elections without
losing the security of the council seat. These omissions from the ballot language
are immaterial, however, because the critical substance of the proposed charter
amendment—the ultimate elimination of the cost of extra elections by electing all
council members to four-year terms at the same election—is sufficiently detailed
in the approved ballot. “Additional language may have made the summary more
complete as to some aspects of the charter amendment, but would also have
defeated the purpose of the summary in providing a clear, concise description of
the amendment to the voters.” Jurcisin, 35 Ohio St.3d at 142, 519 N.E.2d 347.
The ballot language “expressly and fairly represents the meaning and substance of
the proposed amendment.” Id. The omissions in the condensed ballot language
here will not be misleading to the average voter.
{¶ 25} Finally, Kilby contends that the cumulative effect of the defects in
the ballot language is fatal to the validity of the ballot. But he has established no
defect in the ballot language.

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{¶ 26} Therefore, the board of elections and the secretary of state did not
abuse their discretion or clearly disregard applicable law by rejecting Kilby’s
argument concerning the approved ballot language. The ballot language for the
proposed charter amendment approved by the board of elections and the secretary
of state properly describes the amendment.
Conclusion
{¶ 27} Kilby did not establish by the requisite clear and convincing
evidence that he is entitled to the requested extraordinary relief in mandamus and
prohibition. See State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69,
960 N.E.2d 452, ¶ 13 (applying clear-and-convincing standard of proof in
expedited election case for writ of mandamus). Therefore, we deny the writs.
Writs denied.
PFEIFER, ACTING C.J., and HANDWORK, LUNDBERG STRATTON,
O’DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
LANZINGER, J., concurs in judgment only.
PETER M. HANDWORK, J., of the Sixth Appellate District, sitting for
O’CONNOR, C.J.
__________________
John L. Wolfe, for relator.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Mary
Ann Kovach, Chief Counsel, for respondent Summit County Board of Elections.
Michael DeWine, Attorney General, and Damian W. Sikora and Sarah E.
Pierce, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
Cheri B. Cunningham, Akron Director of Law, and John Christopher
Reece and Michael J. Defibaugh, Assistant Directors of Law, for respondent city
of Akron.
______________________

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