State ex rel. Ryant Committee v. Lorain County Board of Elections

Douglas, J.,

concurring in judgment only. While I concur with the majority’s action in dismissing this case, I do so for an entirely different reason, and that necessitates this writing. ■

By entertaining this action, which we do by dismissing the case on the basis of laches, I believe that the majority has failed to grasp what really happened in this case and, in the process, has completely missed the issue of the authority of the Avon City Council to do what it did and, conversely, this court’s lack of authority *115to, in this action for a writ of prohibition, review the council’s action. Instead, the majority focuses on the citizen petition process, the Lorain County Board of Elections’ action or lack of action, no protest hearing, alleged invalid petition signatures, and laches. In my judgment, none of these issues is dispositive because we need not and should not ever reach them.

What really happened in this case is that the city council properly rejected the Avon Citizens Committee’s initiative petition (proposed Ordinance No. 61-99) as the council should have done, and the council did so pursuant to authority derived from the Avon City Charter. Section 1, Article X of the Charter reads, in part, “[w]hen so submitted [an initiative petition] * * * the Council shall take final action, either enacting, amending, or rejecting the proposed ordinance * * *.” (Emphasis added.) The council followed the charter and, in my view, for good reason rejected the ordinance proposed by the petitioners. In part, the petitioners’ proposed ordinance (No. 61-99) stated that “the zoning classification of the Property consisting of 85.8507 acres * * * is hereby changed from C-2 to C-3 and that the Zoning Map of the City of Avon be hereby amended to reflect this change.” Thus, with this language in the ordinance, if city council had passed the ordinance the change would have, if council had the authority to pass such an ordinance on this particular piece of property, taken effect in thirty days subject to referendum pursuant to Section 2, Article X of the Charter, and this is so notwithstanding that the petition provided that the matter was to be submitted to the electors for their determination. At that point, had the foregoing occurred, the vote really would no longer be on an ordinance initiated by petition but would, in effect, be a referendum on the action of city council.

To avoid all of this, the city law director obviously thought through the entire process and gave solid legal advice to his clients, the mayor and council members, who wisely followed that advice. Council, after rejecting the ordinance proposed by the petitioners, then passed its own ordinance (No. 62-99), which properly submitted to the electors of the city of Avon the ultimate question of whether the zoning change should be granted. This the council had every right and power to do and can do, as long as the proper procedures are followed, without interference by this or any court. In fact, a city’s power of local self-government includes the right to call an election even to determine matters that are purely advisory in nature. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 19, 577 N.E.2d 645, 647. Thus, the Bedford court said that “[t]he city contends * * * that * * * (1) municipal elections on matters of local concern are within the powers of local self-government conferred by Section 3, Article XVIII of the Ohio Constitution, and (2) these powers are self-executing. We agree.”

*116Accordingly, the city council had the authority to proceed as it did. Neither we nor any other person or entity has the authority to question, in prohibition or otherwise, such action of the council. This original action should be dismissed as not stating a cause of action and, because the action seeks relief which we are not authorized to grant. Because the ultimate result is the same, dismissal, I concur but only in the judgment of the majority.

Resnick, J., concurs in the foregoing opinion.