[Cite as State ex rel. Brecksville v. Husted, 133 Ohio St.3d 301, 2012-Ohio-4530.]




THE STATE EX REL. THE CITY OF BRECKSVILLE, OHIO v. HUSTED, SECY., ET AL.
                      [Cite as State ex rel. Brecksville v. Husted,
                        133 Ohio St.3d 301, 2012-Ohio-4530.]
Elections—Initiative—Mandamus—Prohibition—Action                    by    city       to   prevent
        certification of initiative petition and submission of issue to voters—Ohio
        Constitution, Article II, Section 1f—Mandamus action dismissed because
        it actually seeks declaratory judgment and prohibitory injunction—Writ of
        prohibition denied—County board of elections and secretary of state did
        not abuse discretion or act in clear disregard of applicable law by denying
        city’s protest—Initiative petition did not violate Article II, Section 1f by
        addressing question that city has no authority to control by legislative
        action.
  (No. 2012-1545—Submitted September 27, 2012—Decided October 1, 2012.)
                            IN MANDAMUS AND PROHIBITION.
                                   __________________
        Per Curiam.
        {¶ 1} This is an expedited election action in which relator, the city of
Brecksville, Ohio, seeks writs of mandamus and prohibition to prevent
respondents, Secretary of State Jon Husted and the Cuyahoga County Board of
Elections, from certifying an initiative petition and submitting the initiative to
electors at the November 6, 2012 general election. We dismiss the purported
mandamus claim for lack of jurisdiction and deny the writ of prohibition.
                                            Facts
        {¶ 2} In January 2010, the Supreme Court of the United States decided
Citizens United v. Fed. Election Comm., 558 U.S. 310, __, 130 S.Ct. 876, 900,
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175 L.Ed.2d 753 (2010), in which it struck down certain provisions of federal
campaign-finance law by holding that “political speech does not lose First
Amendment protection ‘simply because its source is a corporation.’ ” Quoting
First Natl. Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, 55
L.Ed.2d 707 (1978). See also Am. Tradition Partnership, Inc. v. Bullock, __ U.S.
__, 132 S.Ct. 2490, 183 L.Ed.2d 448 (2012).
       {¶ 3} On July 25, 2012, petitioners, certain Brecksville electors, filed
with the city’s finance director a signed initiative petition titled “Brecksville
Initiative in Support Of Movement to Amend the U.S. Constitution To Establish
That Corporations Are Not People And Money Is Not Speech.” In the petition, it
is stated that because of their dissatisfaction with the United States Supreme
Court’s decision in Citizens United, the petitioners proposed certain ordinances to
city electors for their approval at the November 6, 2012 election.
       {¶ 4} On August 8, Brecksville submitted a written protest to the board
of elections against the petitioners’ initiative. The city claimed that the petition
violated the Ohio Constitution, Article II, Section 1f, by addressing a question
that the city lacks authority to control by legislative action, that the petition is
merely a public-opinion poll outlining the views of the electorate, and that the
petition violates public policy by attempting to mandate the actions and support of
the mayor and city council in opposition to the U.S. Constitution.
       {¶ 5} On August 28, the board of elections held a hearing on the city’s
protest against the Brecksville initiative, and the board of elections deadlocked
two-to-two on a motion to uphold the city’s protest against the initiative. In
accordance with R.C. 3501.11(X), the board of elections submitted the tie vote to
respondent Secretary of State Jon Husted to summarily decide the question.
Secretary Husted broke the tie by voting against the motion on September 11.
The secretary determined that the Brecksville proposed ordinances involve
activities that municipal legislative authorities can control by legislative action.



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       {¶ 6} Two days later, Brecksville filed this expedited election action for
writs of mandamus and prohibition to prevent respondents, Secretary of State
Husted and the board of elections, from certifying the Brecksville initiative
petition to the November 6 election ballot. Respondents filed answers, and the
parties submitted evidence and briefs pursuant to the accelerated schedule in
S.Ct.Prac.R. 10.9. Under S.Ct.Prac.R. 10.9, an alternative writ is unnecessary
because the rule itself incorporates an expedited schedule for the presentation of
evidence and briefs. See Christy v. Summit Cty. Bd. of Elections, 77 Ohio St.3d
35, 36, 671 N.E.2d 1 (1996), noting that the rule, as amended effective April 1,
1996, “incorporates a briefing and evidence schedule in expedited election
matters.”
       {¶ 7} This cause is now before the court for our consideration of the
city’s request for oral argument and of the merits of its claims.
                                      Analysis
                                   Oral Argument
       {¶ 8} We deny Brecksville’s request for oral argument in this expedited
election case. The parties’ briefs are sufficient to resolve these issues, see State ex
rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio
St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 23, and the expedited nature of
election cases supports denial. See, e.g., Christy at 40.
                                     Mandamus
       {¶ 9} Brecksville requests a writ of mandamus to compel the secretary of
state to sustain the city’s protest and to direct the board of elections to remove the
petitioners’ initiative from the November 6 election ballot. Although the city’s
request is couched in terms of compelling affirmative duties, it actually seeks (1)
a declaratory judgment that the city’s protest against the initiative has merit and
(2) a prohibitory injunction preventing the secretary of state and the board of
elections from submitting the initiative to electors at the November 6 election.



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We lack jurisdiction over these claims and therefore dismiss the mandamus claim.
See generally State ex rel. Miller v. Warren Cty. Bd. of Elections, 130 Ohio St.3d
24, 2011-Ohio-4623, 955 N.E.2d 379, ¶ 22.
                                          Prohibition
        {¶ 10} “In extraordinary actions challenging the decisions of the Secretary
of State and boards of elections, the standard is whether they engaged in fraud,
corruption, or abuse of discretion, or acted in clear disregard of applicable legal
provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-
Ohio-5923, 778 N.E.2d 32, ¶ 11. Brecksville claims that the secretary of state and
the board of elections abused their discretion and acted in clear disregard of
applicable law by denying the city’s protest and submitting the initiative to the
electors for their vote at the November 6 election.1
                         Ohio Constitution, Article II, Section 1f
        {¶ 11} Brecksville first claims that the secretary of state and the board of
elections abused their discretion and clearly disregarded the Ohio Constitution,
Article II, Section 1f. Article II, Section 1f authorizes initiative and referendum
power only on those questions that municipalities “may now or hereafter be
authorized by law to control by legislative action.” (Emphasis added.) “The test
for determining whether the action of a legislative body is legislative or
administrative is whether the action taken is one enacting a law, ordinance or
regulation, or executing or administering a law, ordinance or regulation already in
existence.” Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968),
paragraph two of the syllabus.
        {¶ 12} The ordinances proposed by the initiative petition do not require
actions that execute or administer laws previously in existence. Instead, they

1. Notwithstanding the board’s argument to the contrary, it exercised quasi-judicial authority when
it held a hearing on the city’s protest against the initiative. R.C. 3501.39(A)(2); State ex rel.
Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895
N.E.2d 177, ¶ 16.




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enact new laws requiring specific actions: (1) the designation of “Democracy
Day,” (2) the conducting of a public hearing to be held on that day to examine the
impact of certain political contributions, (3) the issuance by the mayor of a letter
to certain state and federal legislative leaders stating that Brecksville citizens in
November 2012 voted in support of a constitutional amendment that would
effectively overrule Citizens United, and (4) the recurrence of the public hearings
biannually for up to ten years.
       {¶ 13} Brecksville also claims that the proposed ordinances are not the
proper subject of legislative action because they include precatory language
without legal effect that simply expresses the public opinion of the city’s electors
regarding whether the Citizens United holding should be overturned. This claim
lacks merit because the proposed ordinances exceed the scope of any public-
opinion poll. They require action. The proposed ordinances here do not simply
request a third party to do something that the party has no obligation to do. As the
secretary of state determined in his tie-breaking decision, the Brecksville ballot
issue requires municipal officials to perform specific acts like designating a
specific day and requiring public hearings on the impact of specified political
contributions. The cases that the city cites are consequently inapposite. See State
ex rel. Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478,
2008-Ohio-5093, 895 N.E.2d 177; State ex rel. Rhodes v. Lake Cty. Bd. of
Elections, 12 Ohio St.2d 4, 230 N.E.2d 347 (1967); and State ex rel. Gateway
Green Alliance v. Welch, 23 S.W.3d 861, 864 (Mo.App.2000).
       {¶ 14} Finally, the city’s claim that public policy requires that the
initiative be removed from the ballot because the electorate cannot force the
mayor to speak in support of an issue that is contrary to the United States
Constitution attacks the substance of the proposed ordinances, and this challenge
is premature before the adoption of the proposed ordinances by the people. See




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State ex rel. Kilby v. Summit Cty. Bd. of Elections, 133 Ohio St.3d 184, 2012-
Ohio-4310, 977 N.E.2d 590, ¶ 21.
         {¶ 15} Therefore, because the initiative properly proposes legislative
action, the secretary of state and the board of elections did not abuse their
discretion or clearly disregard applicable law by denying Brecksville’s protest on
that basis.
                                       Procedural Issues
         {¶ 16} We also find no error in Brecksville’s remaining contention that
the board of elections abused its discretion and clearly disregarded applicable law
by making what it claims to be two procedural errors in the matter. The city did
not timely object to the board’s holding a joint hearing on the Brecksville protest
and a comparable Newburgh Heights village ordinance. The city further cites the
board’s error in omitting the first few pages of the transcribed protest hearing
when submitting the matter to the secretary of state pursuant to R.C. 3501.11(X).
This error was caused by a court reporter’s mistake, and the city cites no prejudice
from the omission—there is no evidence that the secretary of state’s decision
would have changed if the missing pages had been submitted to him earlier.2
         {¶ 17} Therefore, the secretary of state and the board of elections neither
abused their discretion nor clearly disregarded applicable law by denying
Brecksville’s protest and submitting the initiative to the city’s electors.
Brecksville has not established its entitlement to the requested extraordinary relief
in prohibition.




2. Brecksville waived its claim for an order returning the matter to the secretary of state for a new
determination based on the full transcript of the protest hearing because it did not include an
argument about this request in its merit brief. See State ex rel. Ohio Liberty Council v. Brunner,
125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 61 (court need not address claim that
was raised in complaint but was not specifically argued in initial merit brief).




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                                     Conclusion
       {¶ 18} Based on the foregoing, we deny the writ of prohibition and
dismiss the city’s mandamus claim for lack of jurisdiction. Our holding that the
ordinances proposed by the initiative constitute proper legislative action is
“consistent with our duty to liberally construe municipal initiative provisions to
permit the exercise of the power of initiative.” State ex rel. N. Main St. Coalition
v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 47.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, LANZINGER, CUPP, and MCGEE BROWN,
JJ., concur.
       LUNDBERG STRATTON and O’DONNELL, JJ., dissent.
                                 __________________
       O’DONNELL, J., dissenting.
       {¶ 19} I respectfully dissent.
       {¶ 20} This case raises an important constitutional question regarding the
scope of the right of initiative established by the Ohio Constitution, Article II,
Section 1f, which provides:


               The initiative and referendum powers are hereby reserved
       to the people of each municipality on all questions which such
       municipalities may now or hereafter be authorized by law to
       control by legislative action; such powers shall be exercised in the
       manner now or hereafter provided by law.


Section 1f thus sets forth an important limitation on the people’s reserved power
of initiative: the ballot issue must be one that the municipality has authority to
control by legislative action.




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       {¶ 21} The “Brecksville Initiative in Support Of Movement to Amend the
U.S. Constitution To Establish That Corporations Are Not People And Money Is
Not Speech” would enact a new Chapter 129 of the Ordinances of the city of
Brecksville as follows:


               Section 129.01. Beginning in the year 2013, the Mayor and
       City Council shall designate one day in the month of February
       following the November federal elections, “Democracy Day.” On
       this day, the Mayor and City Council shall sponsor a Public
       Hearing in a public space within the City. The City shall publicize
       the Public Hearing on its website and through area media at least
       one (1) month in advance of the Hearing. The Public Hearing will
       examine the impact of political contributions of corporations,
       unions, PACS and Super-PACS on the City. The Mayor and at
       least one (1) City Councilperson shall submit testimony at the
       public hearing.    In addition, all citizens of Brecksville will be
       permitted to submit oral testimony for a period of at least 5
       minutes per citizen.
               Section 129.02. Within one (1) week following the Public
       Hearing, the Mayor shall send a letter to the leaders of the Ohio
       House    and   Senate,    and   Brecksville’s   U.S.   congressional
       representative, and both Ohio U.S. Senators stating that the citizens
       of Brecksville in November 2012 voted in support of a Citizens’
       initiative calling for a constitutional amendment declaring:
               (A) Only human beings, not corporations, are legal persons
       with constitutional rights.




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               (B)   Money is not equivalent to speech, and therefore
       regulating political contributions and spending is not equivalent to
       limiting political speech.
               Section 129.03.      The bi-annual Public Hearings will
       continue for a period of ten (10) years through February, 2023, or
       until a constitutional amendment reflecting the principles set forth
       in Section 129.02 is ratified by ¾ of state legislatures.
               Section 129.04. This initiative shall take effect and be
       included in the City Ordinances at the earliest date permitted by
       law.


       {¶ 22} In essence, the initiative would require the city of Brecksville to
enact legislation in support of a movement to amend the United States
Constitution to abrogate the United States Supreme Court’s decision in Citizens
United v. Fed. Election Comm., 558 U.S. 310, 130 S.Ct. 876, 913, 175 L.Ed.2d
753 (2010), holding that government cannot prohibit independent expenditures for
political speech based on the speaker's corporate identity.
       {¶ 23} In my view, the petition here does not initiate any new law that the
municipality has power to enact; rather, it serves only as a nonbinding referendum
on the Supreme Court’s interpretation of the First Amendment in Citizens United.
The city plainly lacks authority to control the meaning of the First Amendment by
local legislation or to overturn a decision of the United States Supreme Court.
Furthermore, Article V of the United States Constitution vests Congress and state
legislatures—not local municipalities—with the power to propose amendments to
the Constitution. Accordingly, at most, the initiative petition seeks to gauge
public opinion on what the federal law on political contributions from
corporations should be, and it therefore has nothing to do with local city
government in Brecksville, Ohio.



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         {¶ 24} This court’s decisions in State ex rel. Rhodes v. Lake Cty. Bd. of
Elections, 12 Ohio St.2d 4, 230 N.E.2d 347 (1967), and State ex rel. Upper
Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093,
895 N.E.2d 177, are instructive.
         {¶ 25} In Rhodes, the relators sought to compel the elections board to
place an initiative measure on the ballot stating that the people of the village of
Willoughby Hills resolve that “[t]he President of the United States should bring
all American troops home from Vietnam now so that the Vietnamese people can
settle their own affairs.” (Emphasis added.) Id. at 4. We held that “[t]he
initiative petition in the instant case does not contain any question which a
municipality is authorized by law to control by legislative action.” Id. Notably, a
municipality has no authority to control the President’s decisions in the conduct of
a war.
         {¶ 26} Similarly, in Upper Arlington, we held that a board of elections
abused its discretion and clearly disregarded applicable law when it placed a
proposed ordinance on the ballot that would bar the city from entering into a
contract with a private corporation to provide solid-waste services. We explained:


         [I]nsofar as the proposed ordinance included precatory language
         without legal effect that appeared to express the public opinion of
         the city's electors—that the city residents “do not desire”
         privatization of trash-collection services, “want” to continue the
         preexisting trash-collection method, and “don't want” the city to
         enter into a contract with Inland Service Corporation—its
         enactment would also not constitute a proper legislative action.


Id. at ¶ 26. And we cited approvingly State ex rel. Gateway Green Alliance v.
Welch, 23 S.W.3d 861, 864 (Mo.App.2000), for the proposition that a “proposed



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ordinance that merely constituted a ‘public opinion poll’ of the city’s electorate on
an issue was administrative rather than legislative in character and was thus an
inappropriate subject for initiative.” Upper Arlington at ¶ 26.
        {¶ 27} Like the initiative measure in Rhodes, the Brecksville ordinances
request that third parties do something—propose an amendment to the United
States Constitution. And like the initiative measure in Upper Arlington, the
Brecksville ordinance amounts to a mere “public opinion poll” to determine
whether or not a majority of the city’s voters want government restrictions on
corporate campaign expenditures and would support amending the Constitution to
eliminate the free-speech rights of corporations.
        {¶ 28} While I recognize that the initiative also seeks to establish
Democracy Day and to provide a public forum to examine the impact of political
contributions on the city, these are incidental to the real focus of the initiative.
Regardless of the public sentiment expressed at a public forum on Democracy
Day or at any other time, the outcome is always predetermined, because the
proposed law directs the mayor to send letters to legislative leaders in state
government and to state representatives in Congress declaring the views of a
majority of city voters in the November 2012 election.            Any future public
discourse generated by Democracy Day on the merits of campaign finance reform
is ultimately irrelevant to the purpose of the initiative measure, because it cannot
affect the results of a past election.
        {¶ 29} Accordingly, because I believe that this case raises an important
constitutional question on the scope of the right of initiative afforded by the Ohio
Constitution and has wider implications than the establishment of Democracy Day
in the city of Brecksville, I would schedule oral argument and not rule on the writ
at this time.
        LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                                __________________



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       Rademaker, Matty, Henrikson & Greve, David J. Matty, and Shana A.
Samson; and Sergio DiGeronimo, for relator.
       Michael DeWine, Attorney General, and Aaron D. Epstein and Damian
W. Sikora, Assistant Attorneys General, for respondent Secretary of State Jon
Husted.
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Charles
E. Hannan, Assistant Prosecuting Attorney, for respondent Cuyahoga County
Board of Elections.
                          _____________________




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