State ex rel. Lewis v. Hamilton County Board of Elections

Douglas, J.,

concurring. On July 26, 1995, this court issued a per curiam opinion in case No. 95-58, State ex rel. Huebner v. W. Jefferson Village Council. 72 Ohio St.3d 589, 651 N.E.2d 1001. No mandate has yet been issued by the court because a motion for reconsideration of our decision has been filed. See S.CtPrac.R. XI(3)(A).

In addition to the motion for reconsideration filed in case No. 95-58, Huebner has generated additional cases. Two of those cases are Nos. 95-1689, State ex rel. Lewis v. Hamilton Cty. Bd. of Elections, and 95-1714, State ex rel. Taxpayers for Accountable Govt. v. Cincinnati City Council. These cases arise out of an election matter in Cincinnati.

I

Case No. 95-1689

In this case, relator seeks writs of mandamus and/or prohibition to prevent respondents, the Hamilton County Board of Elections and its members, from conducting an election set to be held on August 30,1995. The election is for the purpose of determining whether a proposed amendment to the Charter of the City of Cincinnati should be adopted. The election has been scheduled by respondents pursuant to ah ordinance certified by Cincinnati City Council to respondents, which ordinance proposes the charter amendment in question. In addition, respondents had verified that petitions, seeking a vote on the proposed charter amendment, contained sufficient valid signatures for the issue to be presented to the voters of Cincinnati for a determination as to whether the charter should be amended.

For (at least) the two reasons which follow, relator’s original action for writs of mandamus and/or prohibition should be dismissed.

A Section 9, Article XVIII, Ohio Constitution

Section 9, Article XVIII of the Ohio Constitution reads, in pertinent part, that “[ajmendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality * * *, shall be submitted by such legislative authority.” (Emphasis added.)

*1204Thus, there are two ways to secure a vote on a proposed charter amendment. One of those ways is for the legislative authority (city council) to authorize, by at least a two-thirds vote of its membership, submission of the proposed amendment to the electors. This method is separate and apart from the other method, ie., the petition route. In this case (95-1689), the legislative authority (Cincinnati City Council) voted unanimously to place the proposed charter amendment on the ballot at a special election. That action by city council ends this case and that is so even though the petition process was also used. As we said in the second paragraph of the syllabus of State ex rel. Kittel v. Bigelow (1941), 138 Ohio St. 497, 21 O.O. 380, 37 N.E.2d 41:

“Where a petition has been filed with the legislative authority of a municipality requesting the passage of an ordinance submitting a proposed charter amendment to the electorate, and the legislative authority in fact passes an ordinance of submission by a vote of two-thirds or more of its members, any defects in the filing or signing of the petition become immaterial, even though the preamble of the ordinance recites that the legislative authority is acting in response to the petition.” (Emphasis added.)

Notwithstanding the foregoing, relator contends, in paragraph thirteen of his amended verified complaint, that “[f]ive of the members of Cincinnati City Council who voted to put the Charter Amendment [on] did not favor putting the amendment on the ballot but so voted only because they believed a favorable vote was mandatory once sufficient signatures were certified.” Attached to the complaint are the affidavits of five councilpersons — Qualls, Sterne, Portune, Yates and Tillery. Each affidavit is virtually an exact duplicate of the others both in form and substance. The affidavits read, in part, that “I did not favor putting the Charter Amendment on the ballot. I voted in favor of Ordinance 205-1955 because the Board of Elections certified that there were enough valid signatures to meet the requirement for placing the issue on the ballot. I voted yes only because I believed that a favorable vote was mandatory once sufficient signatures were certified.” Thus, it is relator’s position that the five councilpersons cast their votes in favor of the ordinance because they were laboring under a misconception and, therefore, there were not enough votes (six out of nine) to place the issue on the ballot.

Relator’s position is not well taken. In Kittel, supra, we also said that “[c]ouncil had the unquestioned power under Section 9, Article XVIII of the Constitution of Ohio, to enact this legislation by a two-thirds vote -without any petitions. The court will not examine into the motives, whether expressed or unexpressed, which may have induced the exercise of this power. It is not within the judicial province to nullify a statute or ordinance merely because of the alleged impropriety or mistaken beliefs underlying the legislators’ reasons for enacting it.” (Emphasis added.) Id. at 502, 21 O.O. at 383, 37 N.E.2d at 44.

*1205Accordingly, when the Cincinnati City Council, by a two-thirds or more vote of its membership, voted to hold a special election on the proposed charter amendment, the council complied with Section 9, Article XVIII of the Ohio Constitution. Thus, the board of elections has a clear duty to hold the election and relator’s action must be dismissed.

B. Laches

In State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48, 600 N.E.2d 656, 659, we said that “[w]e have routinely dismissed complaints or otherwise denied extraordinary relief in election-related cases due to laches.” In State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1989), 47 Ohio St.3d 117, 548 N.E.2d 230, we denied a writ of mandamus sought by relator to require placement on the ballot of certain local option questions. In denying the requested writ, we said that “absentee ballots had already been printed and mailed to electors who would have been affected by the questions * * * proposed.” We then denied the writ ue to laches. The same reasoning applies here. Absentee ballots have been distributed and a number have been voted. The hour of decision (objection) has long since come and gone. Case No. 95-1689 must also be dismissed on the basis of laches. Once the election process has begun, absent a complete lack of authority to hold the election in the first instance, the process must not be disturbed.

II

Case No. 95-1714

This case also involves the proposed amendment to the Cincinnati City Charter. The action seeks a writ of prohibition to prevent the Cincinnati City Council from repealing its ordinance, which certified the proposed amendment of the charter to the board of elections. The action also seeks to prohibit the board from acting on any attempt by the city council to remove the proposed amendment issue from the August 30, 1995 special election ballot.

The city council met and the city council decided. The council decided to indefinitely postpone consideration of an ordinance seeking repeal of the council’s original action of certification. Accordingly, case No. 95-1714 must be dismissed as moot.

Ill

Conclusion

For the foregoing reasons, case Nos. 95-1689 and 95-1714 must be dismissed. Accordingly, I concur in their dismissal.

Resnick, J., concurs in the foregoing concurring opinion.