Summary
The Ohio Supreme Court considered whether a city auditor had a ministerial duty to transmit initiative and referendum petitions concerning an ordinance approving a Wal-Mart construction development agreement. The court held that the ordinance implemented existing laws and was therefore an administrative act not subject to initiative or referendum. Although the auditor improperly refused to transmit the petitions for signature verification, the court denied mandamus because placing the petitions on the ballot would have been futile.
Topics
Practice areas
Questions Presented
- Whether the finance director-auditor had a ministerial duty under Ohio Revised Code 731.28 and 731.29 to transmit the initiative and referendum petitions to the board of elections for signature verification.
- Whether the finance director-auditor could refuse to certify the petitions based on his determination that the ordinance was administrative rather than legislative.
- Whether Ordinance No. 05-55 AC CMS was legislative action subject to municipal initiative or referendum, or administrative action not subject to those processes.
- Whether the ordinance's emergency designation independently exempted it from referendum.
Holdings
- Under Ohio Revised Code 731.28 and 731.29, a city auditor or village clerk has a mandatory ministerial duty, after ten days have elapsed from filing, to transmit an initiative or referendum petition and a certified copy of the ordinance or measure to the board of elections for signature verification.
- A city auditor or village clerk exceeds the ministerial and limited discretionary authority granted by the municipal initiative statutes by making a judicial or quasi-judicial determination that an ordinance is administrative rather than legislative for purposes of initiative or referendum.
- An ordinance approving a construction development agreement that implements existing laws and regulations is administrative action, not legislative action, and therefore is not subject to municipal initiative or referendum.
- Mandamus will not issue to compel a vain act; because the ordinance was administrative and could not properly be repealed or submitted to referendum, relators lacked a clear legal right to ballot placement and the writ was denied.
Key quotations
“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.” (106 Ohio St. 3d at 485; ¶ 23)
“These issues should be initially decided by the local authorities best equipped to gauge compliance with election laws — boards of elections — after petitions are certified to them by city auditors and village clerks, rather than by auditors and clerks.” (106 Ohio St. 3d at 487; ¶ 35)
Factual background
Oberlin City Council enacted Ordinance No. 05-55 AC CMS approving a construction development agreement with Wal-Mart for public improvements associated with a proposed development. The ordinance implemented an existing municipal requirement that developers execute construction agreements for subdivision improvements and declared itself an emergency measure. Oberlin Citizens filed initiative and referendum petitions seeking repeal of or an election on the ordinance, but the city finance director-auditor refused to transmit or certify them.
Procedural history
Oberlin City Council enacted an ordinance approving a construction development agreement with Wal-Mart and declared it an emergency measure. Relators filed initiative and referendum petitions challenging the ordinance. The finance director-auditor, following advice from the city law director, refused to transmit or certify the petitions, prompting this original mandamus action. The respondent filed an answer but did not file evidence or a brief by the deadline.