OPINIONS OF THE SUPREME COURT OF OHIO

        **** SUBJECT TO FURTHER EDITING ****

    The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
    Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
    NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State ex rel. Spadafora et al. v. Toledo City Council.
[Cite as State ex rel. Spadafora v. Toledo City Council
(1994), Ohio St.3d .]
Mandamus to compel placement of proposed charter amendment
   for city of Toledo on ballot -- Writ denied, when.
   (No. 94-2210 -- Submitted October 25, 1994 -- Decided
December 30, 1994.)
   In Mandamus.
   In May 1993, a group named the Toledo Downtown Rooters
("TDR") was created to oppose plans to locate a branch of the
Center of Science and Industry ("COSI") in a vacant facility in
downtown Toledo known as the Portside Festival Marketplace
("Portside"). TDR initiated a petition drive to place a
proposed charter amendment on the ballot for the city of
Toledo. The proposed amendment would require the Portside
property to be used solely and exclusively as a "Festival
Marketplace" or as a "first-class commercial or retail use," as
defined in then-existing deeds. The practical effect of the
amendment would be to prohibit the location of the COSI branch
in Portside. The part-petitions contained a notarized "OATH OF
CIRCULATOR" which stated that the "circulator has received no
money or benefit or promise for obtaining these signatures."
   The head of TDR, Betty Mauk, agreed to provide expense
money to William Baker in the amount of $2 per completed
part-petition that he circulated. Baker had Antonio Stewart
circulate some petitions for which Baker promised to pay him
the $2 Baker would receive for each completed part-petition.
On May 18, 1994, Baker signed a note agreeing to repay Mauk the
expense money, i.e., $400, he had received for the completed
part-petitions he had circulated. On June 17, 1994, a
quitclaim deed from the Maumee Valley Community Urban
Development Corporation released all conditions and
restrictions on the use of the Portside property, including the
restrictions quoted in the text of the part-petitions being
circulated.
    On June 20 and July 15, 1994, a petition and supplement
thereto proposing the charter amendment which contained a total
of 19,694 signatures were filed with the clerk of respondent,
Toledo City Council. The petition was forwarded to the Lucas
County Board of Elections ("board"), which determined that it
contained 10,481 valid signatures. On July 25, 1994, the clerk
of council certified to council that the petition contained
10,481 valid signatures. A total of 9,520 signatures was
needed for submission of the proposed charter amendment to the
electorate.
    The Director of Law (and the Acting Director of Law) for
the city of Toledo sent letters to the board protesting the
petition. On July 26 and August 9, 1994, council held regular
meetings but took no action on the petition. At its regular
meeting of August 23, 1994, council enacted an emergency
ordinance referring the petition to the board for review of the
law director's objections. By letter dated August 24, 1994 to
the board, the law director reiterated and supplemented his
objections to the petition.
    The board, after conducting evidentiary hearings, decided
on September 2, 1994 that it lacked authority to determine the
validity and sufficiency of the charter amendment petitions.
Nevertheless, the board issued a report to council, detailing
its findings regarding each of the law director's objections.
The board determined that Baker had been compensated for
circulating part-petitions and that those petitions contained
1,450 valid signatures. The board did not determine if the
part-petitions were invalid because of Baker's compensation but
did decide that it would not refer him for criminal prosecution
since Baker had requested TDR not to file these
part-petitions. The board determined that all of the law
director's other objections to the petition were meritless.
    On September 6, 1994, council passed an ordinance in which
it determined that the proposed charter amendment would not be
submitted to the electors because the petition was
"insufficient and/or invalid in some or all of the following
alternative respects:
    "(a) The Law Department opinion, as supported by the
findings and report of the Board of Elections, is that the oath
of certain circulators (Baker and Stewart) on the original
petitions was false, in that they received compensation for
their services as circulator[s], which was contrary to their
oath and prohibited by Ohio Revised Code Section 3519.06(D),
thus invalidating approximately 1,600 signatures (Baker-1450,
Stewart-150) of 10,481 filed on June 20, 1994.
    "(b) The Law Department opinion, which is not shared by
the Board of Elections, is that the content, purport and effect
of the petition, which refers to deed restrictions on the
Portside property, were false and invalid after the June 16,
1994 closing with the State of Ohio for COSI, and the
acceptance of deeds releasing said restrictions, the execution
of contracts and recording of documents; and the acts of
knowingly circulating such false petitions after June 16, 1994
constituted continuing misrepresentations prohibited by Ohio
Revised Code Sections 3599.14, 3599.36 and 731.36(A), thus
invalidating approximately 1,319 signatures obtained after said
date and filed on June 20, 1994 and July 15, 1994."
   Toledo City Council thus concluded that 2,919 of the
10,481 previously certified signatures were invalid, leaving a
remainder of 7,562 valid signatures, less than the 9,520
required to submit the proposed charter amendment to the
electorate.
   On October 17, 1994, almost six weeks following council's
determination, relators, Anthony A. Spadafora and Portside and
Renaissance Toledo Advocates ("PARTA"), initiated this action
seeking a peremptory writ of mandamus to compel council to
adopt an ordinance placing the proposed charter amendment on
the November 8, 1994 ballot. Relators alternatively requested
a peremptory writ compelling council to place the charter
amendment on the ballot at the first available time following
the November 8, 1994 ballot. Spadafora is an elector and
taxpayer of the city of Toledo and a signator of the charter
amendment petition. PARTA is a political action committee
operated by Spadafora and others as an arm of the charter
amendment proponents. On October 24, 1994, council filed an
answer, affidavit, and exhibits.

   Jeffrey M. Gamso, for relators.
   Mark S. Schmollinger, Toledo Acting Director of Law, and
Joseph Goldberg, Senior Attorney, for respondent.

    Douglas, J. In the case at bar, certain circulators
(including William Baker) signed an oath on petitions that they
received no compensation for their services as petition
circulators. William Baker himself, the Lucas County Board of
Elections and the Toledo City Council all now agree that Baker
was paid to circulate the petitions and the oath of the
circulators was false. In fact, it was decided by the board of
elections not to refer Baker for criminal prosecution only
because Baker requested the TDR not to file the part-petitions
in question. The petitions were, however, filed.
    R.C. 3519.06(D) provides that "[n]o initiative or
referendum part-petition is properly verified if it appears on
the face thereof, or is made to appear by satisfactory
evidence: * * * That the statement is false in any
respect[.]" (Emphasis added.) Admittedly, R.C. Chapter 3519
involves statewide initiative and referendum petitions.
However, in State ex rel. Watkins v. Quirk (1978), 59 Ohio
App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, the court held that
a municipal clerk of council does have authority to invalidate
all signatures affixed to referendum part-petitions where the
part-petition on its face violates R.C. 3519.06(C). We agree
that R.C. 3519.06 may be applied to a municipal referendum
petition. Here, the board of elections rendered a report to
the council which, in part, found (after a hearing) that Baker
had in fact been compensated for circulating part-petitions.
Certainly this is "satisfactory evidence" that on the face of
the petition, there was a false statement. See R.C.
3519.06(C). Thus, city council not only had the right to
reject the ordinance placing the proposed charter amendment on
the ballot -- it had the duty so to do.
    Further, in State ex rel. Concerned Citizens for More
Professional Govt. v. Zanesville City Council (1994), 70 Ohio
St.3d 455, 457-458, 639 N.E.2d 421, 423, we said that "* * * it
follows that the legislature [city council] need not make the
submission [to the electors] unless satisfied of the
sufficiency of the petitions and that all statutory
requirements are fairly met." (Emphasis added.) See, also,
State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993) 67
Ohio St.3d 334, 335-336, 617 N.E.2d 1120, 1122.
    Clearly, one of the requirements of R.C. 3519.06(D) is
that an initiative and/or referendum petition speak, on its
face, the truth. That statute was clearly violated here and,
accordingly, Toledo City Council had the right (and duty) not
to submit the question, based on these petitions, to the
electors of Toledo.
    In consideration of the foregoing, the writ is denied and
the cause is dismissed.
                         Writ denied and
                         cause dismissed.
    Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
    Moyer, C.J., A.W. Sweeney and Wright, JJ., concur
separately.
    Moyer, C.J., concurring in judgment only. I concur in
judgment with the majority decision for the following reasons.
In a very brief opinion, the majority casts aside
well-established law relating to the authority of a city
council of a charter city to place or not place on the ballot a
charter amendment proposed by a requisite number of electors of
the municipality. Whatever our views may be with respect to
the desirability of locating a branch of the Center of Science
and Industry in Portside, we should not cast aside
well-established law and announce new law that will have a
dramatic impact upon the will of the voters to place issues on
the election ballots.
    Section 7, Article XVIII of the Ohio Constitution
authorizes municipal corporations to adopt and amend a home-
rule charter. Sections 8 and 9 of Article XVIII prescribe the
procedures for adopting and amending a charter. State ex rel.
Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d
334, 336, 617 N.E.2d 1120, 1122. On petition of ten percent of
the electors, the legislative authority of the city must
"forthwith" authorize by ordinance an election on the proposed
charter amendment. In a unanimous opinion we recently followed
well-established law and held that the authority of a city
council in determining the sufficiency of a petition is limited
to the form of the petition and does not include substantive
matters. Morris v. Macedonia City Council (1994), 71 Ohio
St.3d 52, 641 N.E.2d 1075; see State ex rel. Polcyn v. Burkhart
(1973), 33 Ohio St.2d 7, 62 O.O.2d 202, 292 N.E.2d 883. In
fact, there is no way to find the law in Morris inapplicable to
this case.
    The city council's authority to determine if all
applicable statutory requirements have been met is not as broad
as that of a board of elections or the Secretary of State.
Council may not engage in judicial or quasi-judicial
determinations of matters which are not apparent on the face of
the petition or which require the aid of witnesses to
determine. See Morris, supra, at 55, 641 N.E.2d at 1078; State
ex rel. Citizens for a Better Portsmouth v. Sydnor (19791), 61
Ohio St.3d 49, 52, 572 N.E.2d 649, 651; and Polcyn, supra, 33
Ohio St.2d at 10-11, 62 O.O.2d at 203-204, 292 N.E.2d at 885.
Without any analysis, the majority opinion cites a court of
appeals' opinion, State ex rel. Watkins v. Quirk (1978), 59
Ohio App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, to support
its holding that R.C. 3519.06(C), which clearly applies to
statewide initiative and referendum petitions, now applies to
petitions filed to amend the charter of a municipality. That
holding has far-reaching implications and should not be adopted
in this case.
     It is clear from the plain words of the Constitution, the
cases applying the Constitution, and the statutes that the
policy of the law is to favor the right of citizens to amend
the charters of the municipalities in which they live. For
that reason, the law does not, among other things, give a city
council the right to act as a quasi-judicial body and
substantively attack citizens' rights to place charter
amendments on the ballot. The dilemma is that the law appears
to provide no remedy to persons who seek to disqualify
part-petitions on the basis that the circulators thereof made
false representations. It would appear, however, that an
action to enjoin a board of elections from placing an issue on
the ballot would be available to an appropriate party.
     Notwithstanding the foregoing analysis, I concur in the
judgment of the majority. Council could have enacted an
ordinance placing the proposed charter amendment on the
November ballot, but refused to do so based upon alleged
defects which it was not authorized to consider. Had relators
filed their mandamus action timely, placement of the issue on
the November 8 ballot would have been warranted. However,
council argues that relators did not file this mandamus action
until forty-one days following its decision regarding the
sufficiency of the petition. In other cases, we have compelled
placement of a charter issue on the ballot for the next
regularly scheduled election where relators initiated mandamus
actions within ten days of either council's refusal or the
constitutional deadline to enact an enabling ordinance. See,
e.g., State ex rel. Jurcisin v. Cotner (1984), 10 Ohio St.3d
171, 10 OBR 503, 462 N.E.2d 381; State ex rel. Concerned
Citizens for More Professional Govt. v. Zanesville City Council
(1994), 70 Ohio St.3d 455, 639 N.E.2d 421; Sydnor; and Morris,
supra.
     Diligence and promptness are required of those seeking to
affect the outcome of an election. See State ex rel. White v.
Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 49,
600 N.E.2d 656, 659. The failure of relators to act promptly
in this case made it virtually impossible to give electors
sufficient notice of the proposed charter amendment in time for
the November 8 election. See Sections 8 and 9, Article XVIII,
Ohio Constitution, and R.C. 731.211. In fact, relators
themselves complained that "if the proposed amendment gets on
the November 8, 1994, ballot, its advocates will have precious
little time to campaign for its passage." For that reason, we
refused relators' request for a writ of mandamus.
    Relators alternatively request that we issue an order that
would place the issue on a subsequent special election ballot
within sixty and one hundred twenty days after the passage of
an enabling ordinance by council. Such special election would
be held at considerable cost, a cost that need not be borne had
relators acted in sufficient time to place the issue on the
November 8 ballot. Considering relators' considerable delay in
bringing this action, I would not issue an order requiring a
special election.
    For the foregoing reasons, I concur only in the judgment
of the majority opinion.
    A.W. Sweeney and Wright, JJ., concur in the foregoing
concurring opinion.
