The STATE EX REL. HARRIS et al. v. RUBINO, Fin. Dir., et al.

{¶ 24} These provisions make no mention of an ordinance (or any other action by the city council) certifying an initiative petition to the board of elections (a certification ordinance). Rather, they refer to any ordinance that changes zoning or a permitted use, whether it is one enacted by the legislative body-city council-or it is one proposed by initiative petition , that is, an ordinance that would be enacted if the voters approve it in the election (the proposed ordinance). The phrases passage thereof and Council submits such ordinance grammatically refer to the ordinance effecting a change in the zoning classification or the uses permitted , i.e., in the initiative context, the proposed ordinance, not a separate, otherwise unmentioned certification ordinance.

{¶ 25} Although it is not clear whether the term passage means passage by the city council or passage by the voters in an election, neither interpretation of the term creates a requirement that the city council certify an initiative petition to the board of elections-in fact, neither interpretation makes sense in the context of initiatives. The city council does not pass an ordinance proposed by initiative petition, effecting a change in zoning or permitted use , so passage thereof cannot refer to passage by the city council in regard to an initiative petition. If passage thereof refers to passage by the voters, the submission of such ordinance to the electors after passage thereof would, as the committee argues and the city denies, subject each initiative to two votes by the electorate. Either way, the provisions simply do not address a certification ordinance.

{¶ 26} Conspicuously, the citys brief does not explain how the words of the Article XIV provisions support its position. Rather, it sets out the full text of the provisions and then shifts immediately to a discussion of its practice since the 1988 charter amendments. But the city cites no authority stating that its past practice is entitled to deference. And such deference would be particularly unwarranted here because the right to initiative belongs to the people, not to the municipality as an entity. See Article II, Section 1f, Ohio Constitution.

{¶ 27} To conclude that Article XIV of the charter provides that the city council is to certify initiative petitions to the board of elections would require us to add to or delete words from the charter in order to turn references to a proposed ordinance into references to a certification ordinance or to ignore the reference to after the passage thereof with respect to an ordinance proposed by initiative petition. This would be contrary to the principles of statutory construction. A court construing a provision in a city charter, statute, contract or other writing may not ignore the existence of any word or phrase. Cleveland Elec. Illum. Co. v. Cleveland , 37 Ohio St.3d 50, 53, 524 N.E.2d 441 (1988).

{¶ 28} We must likewise avoid reaching a conclusion premised on an inference of the provisions possible intent rather than on the express terms of the charter. See Bardo , 37 Ohio St.3d at 109, 524 N.E.2d 447. The terms of the charter reflect the somewhat inartful insertion of a clause regarding initiative petitions into what had been solely automatic-referendum provisions. The resulting provisions do not clearly and expressly conflict with R.C. 731.28s requirement that the city auditor exercise his limited, discretionary authority to certify the validity and sufficiency of the initiative petition to the board of elections, see State ex rel. Sinay v. Sodders , 80 Ohio St.3d 224, 231, 685 N.E.2d 754 (1997).

{¶ 29} Accordingly, we hold that Rubino abused his discretion by failing to certify the sufficiency and validity of the petition to the board of elections by the August 8 deadline. Accord id. at 232, 685 N.E.2d 754 ; Webb , 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, at ¶ 39. Because of the proximity of the election, the committee has no adequate remedy at law. We therefore grant a writ ordering Rubino to certify the sufficiency and validity of the initiative petition to the board for placement on the November 2018 ballot.

4. Constitutional Claims

{¶ 30} We do not reach the committees arguments that Article XIV of the Solon City Charter violates Article II, Section 1f of the Ohio Constitution. [C]ourts decide constitutional issues only when absolutely necessary. Smith v. Leis , 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 54. Because we hold inapplicable the charter provisions that the city claims govern the procedure for certifying a zoning initiative petition to the board, determining the constitutionality of those provisions is unnecessary.

{¶ 31} Moreover, we have no jurisdiction over the committees challenges to two other aspects of the Article XIV charter provisions: (1) the ward veto provision, under which a zoning initiative will fail if not approved by a majority of electors in the ward in which the subject property is located, and (2) the purported two vote requirement, i.e., the committees assertion that the charter requires an initiative to undergo two separate votes (an interpretation that the city rejects). This court lacks jurisdiction over a mandamus claim if the true object of the claim is a declaratory judgment and a prohibitory injunction. State ex rel. Gadell-Newton v. Husted , 153 Ohio St.3d 225, 2018-Ohio-1854, 103 N.E.3d 809, ¶ 9. To remedy the committees constitutional challenges to the ward veto and two-vote provisions would require not the relief the committee seeks here-a writ ordering the initiative petition certified to the board of elections-but a declaration that Article XIV is unconstitutional and an order prohibiting the city from enforcing the challenged provisions. We cannot grant that relief in this action.

C. Should the Committee Receive Its Costs and Reasonable Attorney Fees Under R.C. 733.61 ?

{¶ 32} R.C. 733.58 provides that if an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance, the city law director shall seek a writ of mandamus compelling the dutys performance. If a taxpayer of the municipal corporation asks the law director, in writing, to file such an action and the law director refuses, the taxpayer may institute suit in his own name, on behalf of the municipal corporation. R.C. 733.59. If a court hearing such a taxpayer lawsuit is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney. R.C. 733.61. No taxpayer lawsuit shall be entertained by any court until the taxpayer gives security for the cost of the proceeding. R.C. 733.59.

{¶ 33} With its complaint, the committee filed a motion to establish the amount of security for costs, asking the court to determine whether a security beyond its $100 e-filing fee and $100 e-filing deposit is required.

{¶ 34} In Maple Hts. , this court considered a similar motion and explained that while security for costs is a jurisdictional prerequisite to a statutory taxpayer action, the court has rejected the argument that security must be provided at the time the suit is initially filed and held instead that a court may later transform a common-law taxpayer action into a statutory one through a waiver of security. ( Emphasis sic.) 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, at ¶ 26. In that case, the court granted a writ ordering the Maple Heights City Council to immediately approve an ordinance placing a charter amendment on the ballot, granted the motion to establish the amount of security, waived the requirement that the relators provide security for costs, and found that the relators were entitled to recover reasonable attorney fees. Id. at ¶ 27-28. As in Maple Hts. , we find that an award of costs and reasonable attorney fees is appropriate under R.C. 733.61.

IV. CONCLUSION

{¶ 35} In light of the foregoing, we issue a writ of mandamus ordering the Solon director of finance to certify the sufficiency and validity of the initiative petition to the Cuyahoga County Board of Elections for placement on the November 2018 general-election ballot. We deny the writ as to the remaining respondents.

{¶ 36} We grant the motion to establish security for costs and waive the provision of security for costs. We grant the committee its costs and reasonable attorney fees; attorney fees will be determined upon review of the committees filing of an itemized application and independent evidence supporting the reasonableness of the hourly rates charged and the hours billed. The application should not include attorney fees for pages 21 through 28 of relators reply brief, which were stricken.

Writ granted in part and denied in part, and motion granted.

OConnor, C.J., and ODonnell, Kennedy, French, and DeGenaro, JJ., concur.

Fischer, J., concurs but would deny the committees request for attorney fees.

DeWine, J., dissents, with an opinion.

DeWine, J., dissenting.

{¶ 37} I dissent. The Ohio Constitution grants municipalities the authority to exercise all powers of local self-government. Ohio Constitution, Article XVIII, Section 3. The citizens of the city of Solon exercised this constitutional home-rule power and enacted a charter provision that controls the process for making zoning changes through initiative petition. Yet today, the majority disregards the home-rule rights of Solon and its citizens and insists that state law, rather than the city charter, controls its local zoning initiatives.

{¶ 38} Solons charter provides that most initiative petitions are to be governed by state law but makes an explicit exception to state-law procedures for zoning matters-specifically, it states, except that ordinances or resolutions proposed by initiative petition to affect [sic] a zoning district change or zoning use change shall be governed by Article XIV of this Charter. Solon Charter, Article IX, Section 1(d). This provision is a clear and unequivocal statement of the citys intention to exercise its home-rule power to regulate the initiative process for zoning changes. (Indeed, it is hard to imagine how the city could have expressed its intention any more clearly.) Thus, I would conclude that the citys charter governs the manner in which a relators initiative petition is advanced to the ballot. And I would further hold that Solon City Council did not violate a clear legal duty in failing to pass the initiative ordinance in time for its placement on the November 2018 ballot. The City Exercises its Home-Rule Authority over the Initiative Process

{¶ 39} Under the Ohio Constitutions home-rule provisions, municipalities are authorized to exercise all powers of local self-government. Ohio Constitution, Article XVIII, Section 3 ; see also id. , Section 7. We have long held that matters of municipal elections fall squarely within the powers of local self-government. See Fitzgerald v. Cleveland , 88 Ohio St. 338, 344, 103 N.E. 512 (1913) ; Reutener v. Cleveland , 107 Ohio St. 117, 141 N.E. 27 (1923). This principle is reflected in R.C. 731.41, which provides that the initiative procedures set forth in R.C. 731.28 to 731.41do not apply to any municipal corporation which adopts its own charter containing an initiative and referendum provision for its own ordinances and other legislative matters.

{¶ 40} Solon, for the most part, has acceded to following the initiative procedures provided in R.C. 731.28 et seq. Solon Charter, Article IX, Section 1(d). But it has explicitly provided that local procedures rather than state law shall apply to zoning initiatives: Ordinances and other measures may be proposed by initiative petition and adopted by election, in the manner now or hereafter provided by the Constitution or the law of Ohio, except that ordinances or resolutions proposed by initiative petition to affect [sic] a zoning district change or zoning use change shall be governed by Article XIV of this Charter. (Emphasis added.) Solon City Charter, Article IX, Section 1(d).

{¶ 41} Despite the Solon charters express directive that its own Article XIV-not state law-applies, the majority undertakes a protracted analysis about whether the charter provision clearly and expressly conflict[s] with R.C. 731.28. Majority opinion at ¶ 22. Oddly, in reaching its conclusion that the charter doesnt conflict with the statute, the majority focuses on ways the procedures in Article XIV of the charter are not like those set forth in the statute. Thus, the majority points out that the charter provisions do not set forth a procedure for submitting a zoning initiative petition to the city or for verifying the petitions signatures. Id. at ¶ 22. And the charter do[es] not set forth a procedure for certifying the petition to the board of elections for placement on the ballot. Id. at ¶ 23. But neither of those points demonstrates a lack of conflict with the statute. Indeed, both points emphasize the differences between the statute and the charter.

{¶ 42} It appears that the majority would find that the statutes and charter conflict-and allow the city to exercise its home-rule powers-only if the charter outlined a process that differed item by item with the process set forth in the statutes, for example, if the charter stated that the language required in R.C. 731.33 be printed in purple ink rather than in red. But the home-rule sections of the Constitution give municipalities the broadest possible powers of self-government in connection with all matters which are strictly local and do not impinge upon matters which are of a state-wide nature of interest.

State ex rel. Hackley v. Edmonds , 150 Ohio St. 203, 212, 80 N.E.2d 769 (1948). Nowhere is there a requirement that a charters own initiative process track the procedures prescribed by statute.

{¶ 43} Indeed, the majoritys position doesnt really contradict Solons claim that the citys charter has clearly provided for another process for zoning ordinances proposed by initiative petitions. Instead, the gist of the argument is that Solons charter doesnt do it as well as R.C. 731.28 through 731.41. Thus, the majority focuses on the charters use of the word passage and its somewhat inartful insertion of a clause regarding initiative petitions into what had been solely automatic-referendum provisions. Majority opinion at ¶ 28. But it is not the courts role to evaluate how well a charter provision is drafted:

A municipality automatically has the form of government prescribed by the statutes of the state unless its citizens voluntarily adopt a charter pursuant to the constitutional provision, and where a majority of the sovereign voters do adopt such a charter it is not for the courts to question the wisdom or desirability of the provisions of such charter in respect to purely local affairs.

Hackley at 218, 80 N.E.2d 769 ;see also Buckeye Community Hope Found. v. Cuyahoga Falls , 81 Ohio St.3d 559, 564, 692 N.E.2d 997 (1998) (The constitution does not dictate how municipalities may incorporate a referendum provision into their governing mechanism; nor does it place restrictions upon the nature of the referendum provisions municipalities may employ). Here, Solon has clearly provided its own procedure for initiated zoning ordinances.

{¶ 44} Because the city has adopted its own charter containing an initiative and referendum provision for its own ordinances and other legislative matters, R.C. 731.41, the statutory provisions in R.C. 731.28 et seq. do not apply. Matt Rubino, Solons finance director, was under no legal duty to certify the petition in accordance with R.C. 731.28. I would deny the writ of mandamus as to Rubino.

The City Had No Clear Legal Duty to Advance the Initiative Ordinance in Time to Be Placed on the November Ballot

{¶ 45} The committee argues in the alternative that if the citys charter governs the initiative process, the city had a legal duty to take action so that the initiative ordinance would appear on the November 2018 ballot. The committee suggests that the city council delayed action due to animus toward the proposed ordinance and argues that in the time since the initiative petition was filed with the city on July 12, 2018, the city could have (1) provided for three readings of the ordinance as required by Article IV, Section 5(c) of the Solon City Charter, (2)

passed an emergency ordinance to submit the petition to voters, or (3) acted by motion to submit the petition to voters. Notably, the committee doesnt allege that the city failed to follow its charter. Instead, the committee maintains that the city could have acted differently to meet the deadline to place the initiative on the November 2018 ballot.

{¶ 46} In State ex rel. Commt. for the Proposed Ordinance to Repeal Ordinance No. 146-02, West End Blight Designation v. Lakewood , 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, we considered a petition for a writ of mandamus that claimed in part that the Lakewood City Council had intentionally delayed action on a proposed initiative to avoid placing it on the November 2003 ballot. We concluded that the relators claim had no merit. The council could have acted more quickly on the initiative, but it was under no duty to do so. The city councils actions were authorized by the Lakewood charter.

{¶ 47} Likewise, the Solon City Councils actions here were authorized by its charter. Under Article XIV, Section 1, council needed to pass the initiated ordinance at least 90 days before it could be submitted to voters for approval. For the November 2018 ballot, that meant the ordinance had to be passed by August 8. The charter further provides that

each ordinance * * * shall before its passage, be read by title only on three separate days unless the requirement for such reading be dispensed with by the concurrence of at least five Councilmen; provided, however, that any emergency measure may be passed after one reading and the legislative authority may require any reading to be in full by a majority vote of its members.

Solon Charter, Article IV, Section 5(c).

{¶ 48} After the Cuyahoga County Board of Elections certified the number of valid signatures on the petition (870), the city retrieved the petition and certification on July 31. The petition was then read by title for the first time at the councils next regular meeting on August 6. According to respondents, the council generally held meetings on the first and third Mondays of each month. If the city council held to this schedule, the next regular meeting during which the initiative could have been read was August 20, less than 90 days before the November 2018 general election. The procedures followed by the council were in accordance with the charter.

{¶ 49} The committee cites cases in which we determined that municipal officers had to take immediate action to submit initiatives to voters if time was limited. See State ex rel. Commt. for Charter Amendment Petition v. Avon , 81 Ohio St.3d 590, 595, 693 N.E.2d 205 (1998) ;

State ex rel. Commt. for Charter Amendment Petition v. Maple Hts. , 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 22. But as we explained in Lakewood , those cases, which involved charter-amendment provisions, differ from cases involving initiative petitions, because in charter-amendment cases, municipalities are required to forthwith authorize by ordinance on the charter issue. 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, at ¶ 17, quoting Ohio Constitution, Article XVIII, Sections 8 and 9. No such constitutional requirement exists for initiated zoning ordinances.

{¶ 50} Importantly, the question is not whether the committees initiative petition will go on the ballot, but when. As the city acknowledges, [t]he real issue is whether the petition will be submitted for [the] November, 2018 or May, 2019 election. I would conclude that the city of Solon was under no clear legal duty to meet the committees timeline for placing the initiative on the November 2018 ballot. I therefore would deny the writ of mandamus as to the city. Further, because the committees claims were not well founded, I would deny costs and attorney fees under R.C. 733.61.