[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Ebersole v. Powell, Slip Opinion No. 2014-Ohio-4283.]




                                        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. 2014-OHIO-4283
    THE STATE EX REL. EBERSOLE ET AL. v. THE CITY OF POWELL ET AL.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                 it may be cited as State ex rel. Ebersole v. Powell,
                         Slip Opinion No. 2014-Ohio-4283.]
On reconsideration—Elections—Effect of charter on duties of board of
        elections—City council has no authority to review the substance of a
        proposed ballot measure—Writ of mandamus granted.
            (No. 2014-1469—Submitted September 29, 2014—Decided
                                 September 29, 2014.)
                         ON MOTION FOR RECONSIDERATION.
                               _____________________
        O’CONNOR, C.J.
        {¶ 1} Relators,      Brian    Ebersole,    Sharon     Valvona,     and    Thomas
Happensack, commenced this action for a writ of mandamus to compel
respondents, the city council of Powell, Ohio (“city council”), and City Clerk Sue
Ross, to place relators’ proposed charter amendment on the November 4, 2014
ballot. On September 19, 2014, we held that the terms of the proposed charter
                             SUPREME COURT OF OHIO




initiative were unconstitutional and therefore that the city council properly refused
to place the matter on the ballot.
        {¶ 2} On September 22, 2014, relators filed a timely motion for
reconsideration. After further reflection, we conclude that it was premature to
assess the constitutionality of the proposed ordinance and that the city council
abused its discretion by refusing to submit the amendment to the voters. We
therefore grant the motion for reconsideration and grant a writ of mandamus.
Facts
        {¶ 3} The facts of this case are set forth in detail in our earlier opinion.
In brief, the city council approved Ordinance No. 2014-10, establishing a
development plan for property in downtown Powell, on June 17, 2014.               In
response, relators circulated petitions in support of three ballot measures, one of
which was a proposed amendment to the city charter that would, among other
things, nullify Ordinance No. 2014-10.
        {¶ 4} On August 19, 2014, the city council found that the charter-
amendment petition had a sufficient number of valid signatures to qualify for the
ballot. The council then took up Ordinance No. 2014-41, to place the proposed
charter amendment on the November ballot, and voted unanimously not to
approve that ordinance. The vote to reject Ordinance No. 2014-41 was based on
the legal opinion of the city law director that, on its face, the charter amendment
constituted an unlawful delegation of legislative authority into private hands.
Legal Analysis
        {¶ 5} We use our reconsideration authority “to correct decisions which,
upon reflection, are deemed to have been made in error.” State ex rel. Huebner v.
W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1996).
Reconsideration is proper in this case because our prior decision allowed the city
council to exercise a power it does not possess and veto the placing of the
proposed charter amendment on the ballot.




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        {¶ 6} In State ex rel. Polcyn v. Burkhart, 33 Ohio St.2d 7, 292 N.E.2d
883 (1973), we held that a city council has no authority to review the substance of
a proposed ballot measure.


        None of the cases decided by this court * * * should be construed
        to invest municipal legislative authorities with the power to
        determine what substantive errors, if any, are grave enough to
        warrant the withdrawal of a whole issue from the electorate,
        whether they appear ‘on the face’ of the petitions or not. That is a
        judicial function, and Section 9, Article XVIII, does not
        contemplate that legislative authorities be clothed with that
        prerogative.


Id. at 10-11. It is not the role of the city council to substitute its judgment for that
of the voters as to what matters should appear on the ballot. Nor can the city
council assess the constitutionality of a proposal, because that role is reserved for
the courts.
        {¶ 7} We have reaffirmed the rule in Polcyn on more than one occasion.
See State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-
5009, 835 N.E.2d 1222, ¶ 30-31 (council clerk exceeded her authority by deciding
that the initiative petition involved a subject that the village was not authorized to
control by legislative action); Morris v. Macedonia City Council, 71 Ohio St.3d
52, 55, 641 N.E.2d 1075 (1994) (“The city council’s constitutional authority to
review the sufficiency of petitions is limited to matters of form, not substance”);
State ex rel. Citizens for a Better Portsmouth v. Sydnor, 61 Ohio St.3d 49, 53, 572
N.E.2d 649 (1991) (council exceeded its authority by tabling initiative ordinance
it opposed because once the form of the petition is approved, council must place it
on the ballot).



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       {¶ 8} Intervening respondent has argued for a different result in this case
because, it alleges, the Powell City Charter vests the city council with
independent authority to assess the validity and sufficiency of petitions.
However, the section of the Powell charter identified by intervening respondent as
support for its argument does not pertain to charter amendments.
       {¶ 9} Powell City Charter, Article XII, Section 12.01 governs
amendments to the city charter. The rules relating to “Recall, Initiative, [and]
Referendum” appear in a separate article, Article VI. And the verbiage about
validity and sufficiency appears only in Article VI, not in Article XII.
       {¶ 10} Specifically, Section 6.02 of the charter, governing initiatives,
provides:


               Ordinances and other measures providing for the exercise
       of any powers of government granted by the Ohio Constitution or
       the laws of the State of Ohio, may be proposed by imitative
       petition. * * *
               ***
               * * * If the petition and proposed ordinance are determined
       by the Council to be sufficient and valid, the council shall, at such
       regular meeting, read and act upon the same.


By contrast, Section 12.01 contains no such language. Instead, it states that
“[a]ny section of this Charter may be amended as provided in Article XVIII,
Section 9 of the Ohio Constitution, by the submission of the proposed amendment
or amendments to the electors of the City.”
       {¶ 11} Intervening respondent urges us to hold that charter-amendment
petitions are governed by Section 6.02. We reject this invitation, for two reasons.
First, an initiative under Section 6.02, by definition, relates to proposed




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“[o]rdinances and other measures providing for the exercise of any powers of
government.”      This definition contemplates only legislative enactments, as
demonstrated by the fact that throughout the remainder of Section 6.02, the
charter refers repeatedly to “the proposed ordinance.” An amendment to the
charter is not an ordinance or “measure[] providing for the exercise of [a] power[]
of government.”
       {¶ 12} Second, if Section 6.02 were intended to modify Section 12.01, the
charter would say so. But to the contrary, Section 12.01 does not even describe
the process of petitioning to amend the charter as an “initiative,” much less
incorporate the rules and procedures of Section 6.02 by reference.
       {¶ 13} The proper time for an aggrieved party to challenge the
constitutionality of the charter amendment is after the voters approve the measure,
assuming they do so.      The council acted unlawfully when it failed to pass
Ordinance No. 2014-41 to place the amendment before the voters.
Conclusion
       {¶ 14} For the foregoing reasons, we grant the motion for reconsideration
and grant the writ of mandamus. The city council and the city clerk are hereby
ordered to take all steps necessary to place the proposed charter amendment on
the November 4, 2014 ballot and to submit the question to those voters who have
already secured absentee voter ballots.
                                                            Judgment accordingly.
       PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
       LANZINGER, J., dissents without opinion.
       O’NEILL, J., dissents.
                                ____________________




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       O’NEILL, J., dissenting.
       {¶ 15} I respectfully dissent from the majority’s decision to reconsider
this case. I think we got it right the first time, and no new arguments or facts have
been presented that would warrant reconsideration.
       {¶ 16} Let me suggest a hypothetical to demonstrate the weakness of what
I will refer to as the Supreme Court’s “blind eye doctrine.” Suppose the village of
Pleasantville receives a request to place on the ballot a referendum to amend the
charter of the village to require that all new zoning requests for new housing
developments must contain deed restrictions limiting the number of children in
such a way as to ensure that Pleasantville’s ratio of minorities to whites will never
exceed the national average. The amendment clearly cannot withstand
constitutional scrutiny, on its face, and the village council recognizes that fact.
       {¶ 17} The village of Pleasantville, in a very raucous council session,
publicly states that “we are not under any obligation to entertain craziness on the
ballot.” Then, in an application for a writ of mandamus, the relators assert to the
Supreme Court of Ohio, “We have always had the constitutional right to place
craziness on the ballot.” The Supreme Court then grants the writ, offering the
excuse that “we will visit this another day.”
       {¶ 18} In order to be entitled to the extraordinary writ of mandamus, as is
being requested here, relators must, as a matter of law, demonstrate a clear legal
right to the remedy sought.         There is no clear legal right to place an
unconstitutional proposition on any ballot. I believe that there is a burden on
relators in this matter that has not been met and that is why I did, and do, vote to
deny the writ.

                              ____________________
       Callender Law Group and Christopher Burch, for relators.




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                              January Term, 2014




       Frost Brown Todd, L.L.C., Eugene L. Hollins, Powell Law Director, and
Jennifer B. Croghan, for respondents.
       Vorys, Sater, Seymour & Pease, L.L.P., Bruce L. Ingram, Joseph R.
Miller, and Christopher L. Ingram, for intervening respondent.
       Frost Brown Todd, L.L.C., Philip K. Hartman, and Yazan S. Ashrawi; and
John Gotherman, urging denial of the motion for reconsideration for amicus
curiae Ohio Municipal League.
       Kristen L. Sours, urging denial of the motion for reconsideration for amici
curiae Ohio Home Builders Association and BIA of Central Ohio.
                         _________________________




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