[Cite as State ex rel. Baker v. Brook Park, 2012-Ohio-5043.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 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 the
                               Cuyahoga 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. Guidetti
Joseph W. Diemert, Jr.
Thomas M. Hanculak
Joseph W. Diemert, Jr. & Associates, L.P.A.
1360 S.O.M. Center Road
Cleveland, OH 44124

ATTORNEYS FOR APPELLEES

For City of Brook Park, et al.

Neal M. Jamison
Largent, Berry, Preston & Jamison Co.
1 Berea Commons
Suite 216
Berea, OH 44017

For Cuyahoga County Board of Elections

Timothy J. McGinty
Cuyahoga County Prosecutor

By: David Lambert
         Kelli Kay Perk
Assistant Prosecuting Attorneys
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, 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

Board of Elections (“BOE”) of proposed amendments to the City 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.1


       1
         The Brook Park appellees as well as the chairman, members, and directors of the Cuyahoga
County 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

petition to the clerk of council on August 30, 2012.

       {¶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.

       {¶6} 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 whether
       the Petition complies with the requirements of ORC 731.31. That section,
       in part, requires 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.” * * *.

              The Petition very clearly marks, 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

N.E.2d 1075 (1994).       City council is not required to submit a proposed charter

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

Elections, 72 Ohio St.3d 289, 292, 649 N.E.2d 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

initiative petition until mid-August. In the end, city council had no duty 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 legal right is doubtful,
mandamus may not rightfully issue. State ex rel. Gerspacher v. Coffinberry, 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.

       {¶17} Judgment affirmed.

       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., and
JAMES J. SWEENEY, J., CONCUR
