[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Abernathy v. Lucas Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-201.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2019-OHIO-201
    THE STATE EX REL. ABERNATHY v. LUCAS COUNTY BOARD OF ELECTIONS.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Abernathy v. Lucas Cty. Bd. of Elections, Slip
                              Opinion No. 2019-Ohio-201.]
Elections—Prohibition—Writ of prohibition sought to compel board of elections to
         remove a proposed charter amendment from the February 26, 2019 special-
         election ballot—Writ denied.
    (No. 2018-1824—Submitted January 14, 2019—Decided January 23, 2019.)
                                      IN PROHIBITION.
                                   __________________
         Per Curiam.
         {¶ 1} In this expedited election case, relator, Josh Abernathy, seeks a writ
of prohibition to compel respondent, the Lucas County Board of Elections, to
remove the Lake Erie Bill of Rights (“LEBOR”),1 a proposed amendment to the


1
 For an explanation of the LEBOR, see State ex rel. Twitchell v. Saferin, __ Ohio St.3d __, 2018-
Ohio-3829, __ N.E.3d __, ¶ 2 (plurality opinion).
                              SUPREME COURT OF OHIO




Toledo City Charter, from the February 26, 2019 special-election ballot. We deny
the writ.
                                    Background
        {¶ 2} On December 4, 2018, the Toledo City Council passed Ordinance
497-18. The ordinance declared that the clerk of council had received sufficient
petition signatures to submit the LEBOR to the voters and certified the measure to
the board of elections for placement on the February 26, 2019 special-election
ballot. Abernathy submitted to the board of elections a written protest in which he
made two arguments: (1) the LEBOR was “legally ineligible” to appear on the
ballot because its provisions exceeded the authority of the city of Toledo to enact
and (2) this court’s prior decision in State ex rel. Twitchell v. Saferin, __ Ohio St.3d
__, 2018-Ohio-3829, __ N.E.3d __ (plurality opinion), that the LEBOR was
ineligible for the ballot foreclosed its placement on the ballot under the doctrine of
res judicata.
        {¶ 3} After holding a hearing on Abernathy’s protest, the board members
voted to deny the protest and place the LEBOR on the ballot. In doing so, two
board members made clear their belief that the LEBOR was “on its face
unconstitutional and unenforceable” and “beyond the authority of the City of
Toledo” but stated that they were obliged to vote to place the measure on the ballot
by this court’s recent decision in State ex rel. Maxcy v. Saferin, __ Ohio St.3d __,
2018-Ohio-4035, __ N.E.3d __.
        {¶ 4} On December 26, 2018, Abernathy filed this action for a writ of
prohibition. Because the action was filed within 90 days of the February 26, 2019
special election, the case was automatically subject to an accelerated schedule for
the submission of briefs and evidence. S.Ct.Prac.R. 12.08(A)(1) and (2). The
parties have filed their briefs and evidence in accordance with that expedited
schedule. We granted Bryan Twitchell, Julian C. Mack, and Sean M. Nestor leave
to intervene on behalf of the committee in support of the LEBOR. And we received




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                                January Term, 2019




an amicus brief in support of Abernathy from the Ohio Farm Bureau Federation,
the Ohio Corn & Wheat Growers Association, the Ohio Pork Council, the Ohio
Soybean Association, and the Ohio Dairy Producers Association.
                                  Legal analysis
       {¶ 5} To obtain a writ of prohibition in an election case, a relator must show
that (1) the board of elections exercised quasi-judicial power, (2) the exercise of
that power was unlawful, and (3) the relator has no adequate remedy in the ordinary
course of the law. State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106
Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 27. If all three elements are
proved, then a writ of prohibition will issue. State ex rel. Finkbeiner v. Lucas Cty.
Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 40.
       {¶ 6} Because this is an expedited election matter, the third prohibition
element is easily satisfied. Abernathy does not have an adequate remedy in the
ordinary course of the law because “given the proximity of the election, an
injunction would arguably not constitute an adequate remedy because any
‘appellate process would last well past the election.’ ” State ex rel. Thurn v.
Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289, 292, 649 N.E.2d 1205 (1995),
quoting State ex rel. Smart v. McKinley, 64 Ohio St.2d 5, 6, 412 N.E.2d 393 (1980);
see also State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63,
2006-Ohio-1292, 846 N.E.2d 8, ¶ 22 (holding that the relators in that case lacked
an adequate remedy “given the closeness of the election”).
       {¶ 7} However, the second element necessary for relief in prohibition is not
present here because, as we recognized in Maxcy, a board of elections has no legal
authority to review the substance of a proposed charter amendment and has no
discretion to block the measure from the ballot based on an assessment of its
suitability. __ Ohio St.3d __, 2018-Ohio-4035, __ N.E.3d __, at ¶ 13, 18-19.
       {¶ 8} Municipal-charter amendments are governed by Article XVIII,
Section 9 of the Ohio Constitution, which provides that charter amendments “may




                                         3
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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 setting forth any such amendment, shall be submitted by such
legislative authority.” This constitutional language vests the municipal legislative
body with sole authority to determine whether the petition satisfies the legal
requirements for submission to the voters. “ ‘Inasmuch as the Constitution requires
the submission to be made by legislative authority, it follows that that authority
need not make the submission unless satisfied of the sufficiency of the petitions and
that all statutory requirements are fairly met.’ ” State ex rel. Semik v. Cuyahoga
Cty. Bd. of Elections, 67 Ohio St.3d 334, 335-336, 617 N.E.2d 1120 (1993), quoting
State ex rel. Hinchcliffe v. Gibbons, 116 Ohio St. 390, 395, 156 N.E. 455 (1927).
       {¶ 9} Therefore, as we stated in Maxcy, once the municipal legislative body
passes an ordinance placing the proposed charter amendment on the ballot, “the
duty of the board [of elections] is to simply add the proposed charter amendment
to the ballot.” Maxcy at ¶ 19. A board of elections has no discretion to keep a
proposed charter amendment off the ballot because “in placing a proposed
amendment to a municipal charter on the ballot, the ‘board of elections has nothing
but a ministerial role under the Constitution.’ ” Id., quoting Semik at 337. Once
council passed the ordinance to place the LEBOR on the ballot in accordance with
Article XVIII, Section 9 of the Ohio Constitution, the board had no power to keep
the proposed charter amendment off the ballot.
       {¶ 10} Because Abernathy’s claim fails on the second element he must
satisfy to obtain a writ of prohibition, we need not address the remaining element,
whether the board’s exercise of authority was quasi-judicial. We deny Abernathy’s
request for a writ because the board’s decision to put the proposed charter
amendment on the ballot was not unlawful.
       {¶ 11} Alternatively, Abernathy and amici curiae contend that the board of
elections was affirmatively barred from placing the LEBOR on the ballot by the




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                                 January Term, 2019




doctrine of claim preclusion. This petition in support of the LEBOR first came
before the board of elections on August 28, 2018, when the board voted four to zero
to refuse to place the proposed charter amendment on the November 6, 2018
general-election ballot on the ground that it contained provisions beyond the
authority of the city to enact. Twitchell, Mack, and Nestor filed a complaint in
mandamus seeking an order compelling the board to place the LEBOR on the
ballot, and we denied the writ. Twitchell, __ Ohio St.3d __, 2018-Ohio-3829, __
N.E.3d __, at ¶ 1 (plurality opinion). In light of Twitchell, Abernathy argues that
the board “was barred from considering the re-assertion of the right to place [the]
LEBOR Amendment on the ballot, as this claim had already been adjudicated in
Twitchell.” But as we have discussed, the board had no power to keep the proposed
charter amendment off the ballot for any reason, including claim preclusion.
          {¶ 12} The board of elections performed its ministerial duty by placing the
LEBOR on the ballot. Abernathy is not entitled to a writ of prohibition to undo that
action.
                                                                        Writ denied.
          KENNEDY, FRENCH, and DEWINE, JJ., concur.
          FISCHER, J., concurs in judgment only, with an opinion.
          STEWART, J., concurs in judgment only, with an opinion joined by
O’CONNOR, C.J.
          DONNELLY, J., not participating.
                                 _________________
          FISCHER, J., concurring in judgment only.
          {¶ 13} I respectfully concur only in the court’s judgment denying the writ
of prohibition sought by relator, Josh Abernathy. As an initial matter, I agree with
the judgment reached in the lead opinion that respondent, the Lucas County Board
of Elections, was not barred from placing the Lake Erie Bill of Rights (“LEBOR”)
on the ballot by any preclusive doctrine. I write separately, however, because on




                                             5
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all other issues before the court in this case, it is sufficient for the court to determine
that the board of elections did not clearly disregard applicable law.
        {¶ 14} As the lead opinion correctly recites, “to obtain a writ of prohibition
in an election case, a relator must show that (1) the board of elections exercised
quasi-judicial power, (2) the exercise of that power was unlawful, and (3) the relator
has no adequate remedy in the ordinary course of the law.” Lead opinion at ¶ 5.
For us to determine whether the board unlawfully exercised power, i.e., exercised
power that was unauthorized by law, “we must determine whether the board acted
fraudulently or corruptly, abused its discretion, or clearly disregarded applicable
law.” State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-
Ohio-1292, 846 N.E.2d 8, ¶ 23; see also Stutzman v. Madison Cty. Bd. of Elections,
93 Ohio St.3d 511, 513, 757 N.E.2d 297 (2001); Rust v. Lucas Cty. Bd. of Elections,
108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 8; Wellington v.
Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d
420, ¶ 38; State ex rel. Tremmel v. Erie Cty. Bd. of Elections, 123 Ohio St.3d 452,
2009-Ohio-5773, 917 N.E.2d 792, ¶ 15; State ex rel Murray v. Scioto Cty. Bd. of
Elections, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, ¶ 32; State ex rel.
Brecksville v. Husted, 133 Ohio St.3d 301, 2012-Ohio-4530, 978 N.E.2d 157, ¶ 10,
17.
        {¶ 15} Here, there is no allegation that the board acted fraudulently or
corruptly. Additionally, pursuant to State ex rel. Maxcy v. Saferin, a board of
elections has no discretion to block a proposed charter amendment from the ballot
once the proper legislative authority has passed an ordinance placing that proposed
charter amendment on the ballot. __ Ohio St.3d __, 2018-Ohio-4035, __ N.E.3d
__, ¶ 19. Maxcy is the law on this issue, and pursuant to Maxcy, the board had no
discretion to abuse.
        {¶ 16} The pivotal issue in this case is whether the board “clearly
disregarded applicable law.” It did not. The applicable law is this court’s decision




                                            6
                                January Term, 2019




in Maxcy: the board had a duty to place the proposed charter amendment on the
ballot when the legislative body of the municipality, the Toledo City Council,
passed the relevant ordinance. In abiding by Maxcy, the board did not clearly
disregard applicable law.
       {¶ 17} Whether the board exercised quasi-judicial power in placing the
LEBOR on the ballot is not self-evident; the record reflects that the board actually
held a hearing, a quasi-judicial activity. I am far from certain that the board’s
choice to hold a hearing sits within the board’s purely ministerial role. Regardless,
there is no need to engage in a protracted analysis regarding the board’s exercise of
quasi-judicial power because, in a case such as this, a court will not issue a writ
when the board of elections did not clearly disregard applicable law. Additionally,
there is no need for this court to engage in a discussion regarding the merits of the
court’s reasoning in Maxcy—Maxcy is the applicable law.
       {¶ 18} Because Abernathy has failed to show that the board of elections
clearly disregarded applicable law, I concur in the judgment denying the writ.
                                _________________
       STEWART, J., concurring in judgment only.
       {¶ 19} Although a municipal legislative authority exercises quasi-judicial
authority in determining the sufficiency of petitions proposing an amendment to a
city charter, see State ex rel. Patton v. Myers, 127 Ohio St. 95, 98, 186 N.E. 872
(1933), a “board of elections has nothing but a ministerial role under the
Constitution” in this situation. State ex rel. Semik v. Cuyahoga Cty. Bd. of
Elections, 67 Ohio St.3d 334, 337, 617 N.E.2d 1120 (1993). Therefore, a board of
elections’ actions in placing a proposed city-charter amendment on the ballot “are
not quasi-judicial, and [a] writ [of prohibition] cannot be allowed.” Id., citing State
ex rel. O’Grady v. Brown, 48 Ohio St.2d 17, 20, 356 N.E.2d 296 (1976).
       {¶ 20} Respondent, the Lucas County Board of Elections, exercised no
quasi-judicial power when it placed the Lake Erie Bill of Rights (“LEBOR”) on the




                                          7
                              SUPREME COURT OF OHIO




ballot after the Toledo City Council passed an ordinance to submit the LEBOR to
the voters. At all times, the board acted in a ministerial capacity by placing the
LEBOR measure on the ballot because the board made no deletions from or
alterations to the measure. Relator, Josh Abernathy, has thus failed to establish the
first element required to obtain a writ of prohibition because he has not shown that
the board exercised any quasi-judicial power.
        {¶ 21} As stated in the lead opinion, the elements for obtaining a writ of
prohibition are that “(1) the board of elections exercised quasi-judicial power, (2)
the exercise of that power was unlawful, and (3) the relator has no adequate remedy
in the ordinary course of the law.” (Emphasis added.) Lead opinion at ¶ 5, citing
State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-
Ohio-4758, 835 N.E.2d 336, ¶ 27. The lead opinion bypasses the first element
required to obtain a writ of prohibition and relies solely on discussing the second
element, concluding that Abernathy failed to show that the board of elections’
exercise of power—quasi-judicial power—was unlawful. To reach this conclusion,
the lead opinion must have implicitly determined that the board of elections
exercised quasi-judicial power because the way the second element is worded
indicates that it should be considered only in progression from the first—the
analysis is sequential. The word “that” in the second element applies to quasi-
judicial power, so it is pointless to consider whether the board of elections acted
unlawfully unless the board is first found to have exercised some form of quasi-
judicial power. Yet both precedent and the facts of this case show that the board
acted in a ministerial, not a quasi-judicial, capacity.
        {¶ 22} This brings us to State ex rel. Maxcy v. Saferin, __ Ohio St.3d __,
2018-Ohio-4035, __ N.E.3d __, a case that has no application here. Maxcy says
that once the municipal legislative body passes an ordinance placing a proposed
charter amendment on the ballot, “the duty of the board [of elections] is to simply
add the proposed charter amendment to the ballot.” Id. at ¶ 19. The lead opinion




                                           8
                                January Term, 2019




determines, in essence, that the board here did not exercise quasi-judicial power,
because the board had no authority to exercise quasi-judicial power: “Once council
passed the ordinance to place the LEBOR on the ballot in accordance with Article
XVIII, Section 9 of the Ohio Constitution, the board had no power to keep the
proposed charter amendment off the ballot,” lead opinion at ¶ 9. This is a tautology:
even if the board had no authority to exercise quasi-judicial power, it could still
have done so, albeit erroneously. The lead opinion thus fails to answer an essential
predicate question regarding the manner in which the board acted. Maxcy is
irrelevant to this action because it would apply only in the event that the board had
refused to add the proposed charter amendment to the ballot or had exercised some
sort of quasi-judicial authority that was unlawful.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                               _________________
       McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo,
Derek S. Clinger, and Ben F.C. Wallace, for relator.
       Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,
Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for
respondent.
       Terry J. Lodge, for intervening respondents.
       Bricker & Eckler, L.L.P., Bryan M. Smeenk, Anne Marie Sferra, and Maria
J. Armstrong, urging granting of the writ for amici curiae, Ohio Farm Bureau
Federation, Ohio Corn & Wheat Growers Association, Ohio Pork Council, Ohio
Soybean Association, and Ohio Dairy Producers Association.
                               _________________




                                          9
