[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Jones v. Husted, Slip Opinion No. 2016-Ohio-5681.]




                                           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. 2016-OHIO-5681
                 THE STATE EX REL. JONES ET AL. v. HUSTED ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Jones v. Husted, Slip Opinion No.
                                     2016-Ohio-5681.]
Elections—Mandamus—County-charter petition—R.C. 307.94 provided an
        adequate remedy in the ordinary course of the law—Writ denied.
  (No. 2016-1164—Submitted August 30, 2016—Decided September 6, 2016.)
                                       IN MANDAMUS.
                                    _________________
        Per Curiam.
        {¶ 1} This is an election case in which relators seek a writ of mandamus
requiring respondents, Secretary of State Jon Husted and the Medina County Board
of Elections, to place a proposed charter for Medina County on the ballot at the
November 8, 2016 general election. We conclude that relators are not entitled to
the writ, because they had an adequate remedy at law. Under R.C. 307.94, they
                              SUPREME COURT OF OHIO




could have requested that the board of elections file an action before the common
pleas court to establish the validity of their petition.
                                 Factual background
        {¶ 2} The charter-petition committee, which included relators, Katharine S.
Jones, Elizabeth A. Jarrell, Lynn Kemp, Georgia Kimble, and Emilie Ann Judy,
filed a petition with the Medina County Board of Elections proposing the adoption
of a county charter under Article X, Section 3 of the Ohio Constitution and R.C.
307.94. On July 11, 2016, the director of the board of elections reported that the
petition contained a sufficient number of valid signatures. The board then voted on
whether to certify the proposed charter petition to the board of county
commissioners, which resulted in a two-to-two tie. On July 14, the board submitted
the tie vote to the secretary of state for final determination pursuant to R.C.
3501.11(X).
        {¶ 3} The secretary of state decided the tie vote on August 2, 2016. In his
decision, Secretary Husted broke the tie against the motion to certify the proposed
charter petition to the county commissioners, based on his conclusion that the
proposed charter does not provide for the performance of all duties imposed on
county officers by general law and does not establish a structural change in the
county government and is therefore invalid.
                                  Procedural history
        {¶ 4} On August 9, relators initiated this action as an expedited election
matter pursuant to S.Ct.Prac.R. 12.08, which provides an expedited procedure for
election cases “filed within ninety days prior to the election.” Because the action
was filed 91 days before the general election, we granted the secretary of state’s
motion to reclassify the complaint as a non-expedited case, but we ordered briefing
to continue under the expedited timeframe. ___ Ohio St.3d ___, 2016-Ohio-5396,
___ N.E.3d ___.




                                            2
                                January Term, 2016




                                      Analysis
        {¶ 5} Article X, Section 3 of the Ohio Constitution requires a county charter
to set forth certain information:


            Every such charter shall provide the form of government of
            the county and shall determine which of its officers shall be
            elected and the manner of their election. It shall provide for
            the exercise of all powers vested in, and the performance of
            all duties imposed upon counties and county officers by law.


        {¶ 6} We have previously determined that it is within the secretary of state’s
discretion to determine whether a proposed county charter is invalid on the ground
that it does not set forth the form of government, “which is the sine qua non of a
valid charter initiative.” State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-
Ohio-3749, 43 N.E.3d 419, ¶ 24.
        {¶ 7} The secretary of state contends that the proposed Medina County
charter is invalid because it does not set forth all the powers and duties imposed on
the county and its officers and provide for their exercise. He further alleges that
the charter is insufficient because it does not alter the form of county government
to provide for a county executive but instead proposes to retain the offices and
structures established in statutory law.
        {¶ 8} Relators claim that the charter proposal meets the requirements of
Article X, Section 3 because it sets forth a form of government and provides for the
assumption and exercise of all powers of county government. They further contend
that there is no requirement that a county charter provide for a county executive
and argue that the secretary of state exceeded his ministerial authority to review the
petition.




                                           3
                              SUPREME COURT OF OHIO




        {¶ 9} We need not reach the merits of these arguments, because relators
have failed to establish that they meet all the requirements to obtain a writ of
mandamus. For a writ to issue, relators must “establish a clear legal right to the
requested relief, a corresponding clear legal duty on the part of the secretary of state
to provide it, and the lack of an adequate remedy in the ordinary course of the law.”
State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876
N.E.2d 1231, ¶ 13.
        {¶ 10} The secretary of state maintains that relators fail the third portion of
the test—the lack of an adequate remedy in the ordinary course of the law. We
agree. R.C. 307.94 provided relators with an adequate means to challenge the
board’s decision:


           If the petition is certified by the board of elections to be invalid
           or to have insufficient valid signatures, or both, the
           petitioners’ committee may protest such findings or solicit
           additional signatures as provided in section 307.95 of the
           Revised Code, or both, or request that the board of elections
           proceed to establish the validity or invalidity of the petition
           and the sufficiency or insufficiency of the signatures in an
           action before the court of common pleas in the county.


        {¶ 11} The secretary of state resolved the tie vote of the board under R.C.
3501.11(X), resulting in a determination by the board that the petition was invalid.
Relators then had two statutory procedures through which they could have
challenged the board’s decision: (1) a protest of the board’s decision before the
secretary of state under R.C. 307.95 or (2) a request that the board bring an action
in the common pleas court to establish the validity of the petition—which action
must then be brought within three days—under R.C. 307.94.




                                            4
                                January Term, 2016




       {¶ 12} Relators argue that filing a protest of the board’s decision when, as
here, the secretary of state cast the tie-breaking vote is an insufficient remedy,
because a protest must be heard and decided by the secretary of state. They claim
that protesting the secretary’s tie-breaking vote to the secretary would be “illogical
and redundant.”
       {¶ 13} However, filing a protest that would be decided by the secretary of
state was not their only alternative. Relators had, but failed to avail themselves of,
an alternate procedure. Pursuant to R.C. 307.94, they could have requested that the
board bring an action in the common pleas court to establish the validity of the
petition. Instead, they filed the instant action seeking extraordinary relief.
       {¶ 14} Because there was an adequate remedy in the ordinary course of the
law through which relators could have challenged the board’s decision, we
conclude that they are not entitled to a writ of mandamus.
                                                                         Writ denied.
       O’CONNOR, C.J., and LANZINGER, KENNEDY, and O’NEILL, JJ., concur.
       PFEIFER, J., concurs in judgment only, with an opinion.
       O’DONNELL, J., concurs in judgment only.
       FRENCH, J., concurs in judgment only and would deny the writ on the
authority of State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749,
43 N.E.3d 419.
                                _________________
       PFEIFER, J., concurring in judgment only.
       {¶ 15} In my view, the charter petition at issue fails to even come close to
being a legitimate effort to create a charter form of county government. For
legitimate examples, relators could consult the Cuyahoga County and Summit
County charters.
                                _________________
       James Kinsman and Terry J. Lodge, for relators.




                                          5
                            SUPREME COURT OF OHIO




        Michael DeWine, Attorney General, and Nicole M. Koppitch and Steven T.
Voigt, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
        Dean Holman, Medina County Prosecutor, and William L. Thorne, Brian
M. Richter, and Lee R. Potts, Assistant Prosecuting Attorneys, for respondents
Medina County Board of Elections and its members.
        The Law Firm of Curt C. Hartman and Curt C. Hartman, urging denial of
the writ for amici curiae Michael K. Baach, Northern Medina County Chamber
Alliance, Greater Medina Chamber of Commerce, Medina County Economic
Development Corporation, and Wadsworth Area Chamber of Commerce.
        Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, and Kathleen
M. Trafford, urging denial of the writ for amici curiae Ohio Chamber of Commerce,
Affiliated Construction Trades Ohio Foundation, and the American Petroleum
Institute.
        McTigue & Colombo, L.L.C., and Donald J. McTigue, urging denial of the
writ for amici curiae Affiliated Construction Trades Ohio Foundation and the
American Petroleum Institute.
        Dinsmore & Shohl, L.L.P., Thomas A. Luebbers, and Michael T. Dean,
urging denial of the writ for amicus curiae County Commissioners Association of
Ohio.
        Chad A. Endsley, Leah F. Curtis, and Amy M. Milan, urging denial of the
writ for amici curiae Ohio Farm Bureau Federation and Medina County Farm
Bureau.
                                _________________




                                        6
