INTRODUCTION

            The issue in this case is whether an ordinance rezoning certain land in the Village of Geneva on the Lake (“Village”) is subject to a referendum.  The ordinance was passed as an emergency, but fails to state reasons for such passage.

            On October 7, 2002, the Village Council passed an ordinance rezoning 45 acres of undeveloped land from the Village’s Seasonal Residential One-Family use classification to the Retail Business-Recreational-Resort use classification.  Relator Keith Webb and others timely circulated and filed referendum petitions after the ordinance was passed, obtaining enough signatures to cause the ordinance to be placed on the ballot at the November 4, 2003 general election.  Respondent Margaret Bliss, the Village clerk, has refused to forward the petition to the Ashtabula County Board of Elections (“Board”) as required by Revised Code Section 731.29, because the ordinance was passed purportedly as an emergency and, therefore, not subject to referendum.

            In violation of Revised Code Section 731.30, the text of the ordinance states no reasons for the necessity of its passage as an emergency.  In an affidavit, Respondent proffered some reasons for the need to pass the ordinance as an emergency, but those reasons appear nowhere in the ordinance.

            This Court’s decisions in Youngstown v. Aiello (1951), 156 Ohio St. 32, 100 N.E.2d 62, and State ex rel. Waldick v. Williams (1995), 74 Ohio St. 3d 192, 195, 658 N.E.2d 241, instruct that the ordinance fails to comply with Section 731.30.  As such, the emergency designation was inoperative.  Accordingly, Relator respectfully urges this Court to issue a writ of mandamus compelling the Respondent to forward the petition to the Board consistent with Revised Code Section 731.29.

STATEMENT OF FACTS

            On October 7, 2002, the Village Council enacted Ordinance No. 1165 entitled “An Ordinance Amending Zoning Ordinance No. 654 Passed on May 7, 1973, Reclassifying the North Portion of a Parcel of Land Owned by the Martha Pera Woodward Trust from an S-R1F Classification to (RB-RR) Retail Business Recreational Resort Classification and Declaring this Ordinance to Be an Emergency Measure” (the “Ordinance”).  A true and accurate copy of the Ordinance is attached as Exhibit 1 (“Ex. 1”) to the Affidavit of Keith Webb (“Webb Aff.”) submitted as Relator’s Evidence (“Rel.E.”) on March 11, 2003.  A true and accurate copy of the minutes of the October 7, 2002 meeting is included as Webb Aff., Ex. 2.

            The Ordinance fails to identify the reasons for its passage as an emergency.  The first paragraph of the preamble merely describes the Village’s zoning ordinance passed on May 7, 1973.

            The second paragraph describes the property to be rezoned, identifying its location and owner.

            The third paragraph recites that the Village’s Planning Commission received a request to rezone the subject property.

            The fourth paragraph recites that after conducting a public hearing, the Planning Commission filed a report with the Village Clerk recommending rezoning the property.

            The fifth paragraph recites that the Village Council held a public hearing on the recommendation and found “that said reclassification would be beneficial and would promote the public health, safety, and the economic interest of the community….”

            The sixth paragraph recites that the Village council listened to and considered information presented about the proposed rezoning, and “desires to amend” the requested rezoning.

            The seventh (and final) paragraph recites that the amended rezoning request is not inconsistent with other uses permitted by the Village’s zoning code.

            Section I of the Ordinance rezones the subject property. 

            Section II of the Ordinance recites:

For the reasons stated in the preamble herein, this Ordinance is hereby declared to be an emergency measure which is necessary for the proper regulation and use of lands within the Village of Geneva on the Lake, and further for the reasons that this particular parcel of land is more properly classified and consistent with the Retail Business-Recreational-Resort (RBRR) Classification.

            After the Ordinance was passed, Relator Webb and others caused a true and exact reproduction of the original of the Ordinance to be filed with the Village Clerk preliminary to circulating a referendum petition referring the Ordinance to a vote of the Village electors at the November 4, 2003 election.  (Webb Aff., ¶4e).  Subsequently, a committee of three individuals including Relator circulated a Referendum Petition (the “Petition”) calling for a referendum vote on the Ordinance at the November 4, 2003 general election.  (Id.).  A true and accurate copy of the form of the Petition that was circulated is submitted as Webb Aff., Ex. 3.

            On November 4, 2002, prior to the expiration of 30 days after the Ordinance was passed, Relator Webb delivered to the Village Clerk three part referendum petitions bound as one complete petition containing signatures from 78 electors residing in the Village, an amount greater than the 10 percent of the 360 electors who voted for governor at the next preceding general election for the office of governor in the Village.  (Webb Aff., ¶4f).  A true and accurate copy of a receipt from the Village Clerk acknowledging receipt of the Petition on November 4, 2002 is submitted as Webb Aff., Ex. 4.

            By correspondence dated November 11, 2002, the Respondent advised Relator that she would take no action on the Petition because the Ordinance had purportedly been passed as an emergency.  (Webb Aff., ¶4g).  A true and accurate copy of the Clerk’s November 11, 2002 correspondence is submitted as Webb Aff., Ex. 5.  The Village Clerk has refused to forward the Petition to the Board of Elections.  (Id.).

            Relator commenced this action on December 12, 2002 seeking a writ of mandamus compelling Respondent to forward the Petition to the Board of Elections consistent with Revised Code Section 731.29.  On January 2, 2003, Respondent filed her Answer and a Motion for Judgment on the Pleadings, in which she argued that the Ordinance set forth the reasons for the necessity of its passage as an emergency.

            On February 19, 2003, this Court granted an alternative writ and established an evidence and briefing schedule.  The parties filed their evidence on or about March 11, 2003.

            Respondent’s evidence consists of an affidavit in which she proffered several reasons for the passage of the Ordinance as an emergency.

            For example, Respondent stated that the Ordinance was passed as an emergency “because time was of the essence.”  (Respondent’s Affidavit – “Resp. Aff.” -- , ¶3).  No such language appears in the ordinance.

            Respondent also explained that the Village’s economy “is greatly dependant [sic] on recreation and tourism.”  (Resp. Aff., ¶ 8).  The Ordinance itself, however, says nothing of the sort.

            In paragraph 10 of her affidavit, Respondent states three reasons why the Ordinance was passed as an emergency.  First, she claimed that “the public and Council had considered the Ordinance for seven months.”  (Resp. Aff., ¶ 10(a)).  The Ordinance says nothing about how long the rezoning had been considered.

            The second reason advanced was that the “Village would be deprived of the increased revenue the development of the property as a recreational and resort property would bring to the Village” during the year that would elapse if the Ordinance were to be placed on the ballot.  (Resp. Aff., ¶ 10(b)).  The Ordinance says nothing about increased revenues from the rezoning[1], nor does it recite that the need for such revenues constitutes an emergency.

            Finally, the Respondent stated that the rezoning “was in conformity with Council’s general plan for developing the Village as a resort and recreational community.”  (Resp. Aff., ¶ 10(c)).  It is true that the phrase “general plan of development of the Village” appears in the Ordinance.  However, the Ordinance does not recite that such plan calls for the development of the Village “as a resort and recreational community” and more importantly, does not recite that implementing any such plan constitutes an emergency.

            It is clear that the Ordinance fails to meet the requirements of Revised Code Section 731.30.  Nothing more vividly demonstrates this failure than Respondents’ own attempts to state reasons for its passage as an emergency that appear nowhere in the Ordinance.

ARGUMENT

Proposition of Law No.I:       Where a Village Council Passes an Ordinance Rezoning Land Within the Village As An Emergency Measure, and the Ordinance Fails to State Reasons For Its Passage As An Emergency Consistent With R.C. §731.30, The Ordinance is Subject To Referendum and The Village Clerk May Be Compelled By Mandamus To Forward a Referendum Petition to the County Board of Elections Consistent With R.C. §731.29.

A.        In The Absence of a Statement of the Reasons For Its Passage As An Emergency, the Ordinance is Subject To Referendum.

            Article II, Section 1f of the Ohio Constitution reserves to Relator the right to subject the Ordinance to a referendum:

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.

            Revised Code Section 731.29 sets forth a limitation on the power of referendum: “Any ordinance or other measure passed by the legislative authority of a municipal corporation shall be subject to the referendum except as provided by section 731.30 of the Revised Code.”

            Revised Code Section 731.30 allows municipal legislative authorities to enact certain legislation on an emergency basis.

Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure.

(Emphasis added). 

            In Youngstown v. Aiello, supra, this Court held in paragraph two of the syllabus that the duty to set forth the reasons for an emergency in an ordinance is mandatory and failure to do so will prevent the ordinance from taking immediate effect.  In that case, as this one, the purported emergency clause recited that it was necessary to preserve the public peace, health, and safety, but stated no other reasons for the necessity.

            This Court has also explained “that purely conclusory, tautological, or illusory language in an emergency measure does not meet the requirements for a valid ordinance under R.C. 731.30.”  Waldick, 74 Ohio St. 3d at 195.

            In Materkowski v. Belmont County Board of Elections (Belmont App. August 19, 2002), 2002 Ohio 4370, Case No. 02 BE 34 (copy attached), after Bellaire, Ohio was decertified from a city to a village, the members of its council passed an ordinance establishing the position of Village Administrator to run the day-to-day operations of the village.  The ordinance was passed as an emergency, reciting as the reason for that necessity the fact that it established a position of a “necessary employee….”  2002 Ohio 4370 at ¶4.  Consistent with this Court’s decisions in Youngstown and Waldick, and with the position urged here by Relator, the Materkowski court observed:

R.C. §731.30 requires municipal legislatures to set forth the emergency measure and the basis therefore with some specificity.  Such bodies may not enact such measures using reasons that are conclusory, illusory, or tautological.  State ex rel. Waldick v. Williams (1995), 74 Ohio St.3d 192, 195, 658 N.E.2d 241; Moore; Huebner v. Miles (1993), 92 Ohio App.3d 493, 497, 636 N.E.2d 348; Walsh v. Cincinnati City Council (1977), 54 Ohio App.2d 107, 111, 375 N.E.2d 811.  Reasons that are general, repetitious, or circular do not meet the requirements of R.C. §731.30. City of Cincinnati ex rel. Newberry v. Brush (Jan. 11, 1984), 1^st Dist. No. C-830674; State ex rel. Luff v. Sommer (July 30, 1981), 9^th Dist. No. 10169.  The existence of such legislation would frustrate the purpose behind the requirements of R.C. §731.30 because it would lack the information voters need when determining whether they should re-elect those representatives responsible for enacting the legislation.

2002 Ohio 4370 at ¶17 (emphasis added).  See also State, ex rel. Luff v. Sommer (Summit App. 1981), 1981 Ohio App. Lexis 11182 (copy attached):

We believe that when passing an ordinance as an emergency measure and thereby depriving citizens of an opportunity to invoke the referendum procedure provided for in R.C. 731.29, Council must specify the reasons why the legislation needs to be enacted on an emergency basis. However, we also believe that to allow Council merely to parrot a generalized, conclusory phrase which could be applied to virtually any ordinance sought to be enacted, and doing this without requiring Council to specify the reasons why this particular ordinance is itself of an emergency nature, would in effect be permitting Council to deprive the electorate of their constitutional and statutory right to have a referendum vote on a matter of wide-spread public concern. This we cannot do.

Luff, slip op. at *8-*9. 

            Here, the Ordinance fails to set forth any reasons supporting the Council’s determination to pass it as an emergency.  Accordingly, it is subject to referendum.

B.        Respondent Is Under A Clear Legal Duty To Transmit The Petition to the Board.

            Revised Code Section 731.29 provides in pertinent part:

When a petition, signed by ten per cent of the number of electors who voted for governor at the most recent general election for the office of governor in the municipal corporation, is filed with the city auditor or village clerk within thirty days after any ordinance or other measure is filed with the mayor or passed by the legislative authority of a village,… such auditor or clerk shall, after ten days, and not later than four p.m. of the seventy-fifth day before the day of election, transmit a certified copy of the text of the ordinance or measure to the board of elections. The auditor or clerk shall transmit the petition to the board together with the certified copy of the ordinance or measure. The board shall examine all signatures on the petition to determine the number of electors of the municipal corporation who signed the petition. The board shall return the petition to the auditor or clerk within ten days after receiving it, together with a statement attesting to the number of such electors who signed the petition. The board shall submit the ordinance or measure to the electors of the municipal corporation, for their approval or rejection, at the next general election occurring subsequent to seventy-five days after the auditor or clerk certifies the sufficiency and validity of the petition to the board of elections.

            Relator submitted the Petition to the Clerk on November 4, 2002, 28 days after the Ordinance was passed.  (Webb Aff., ¶4f).  Therefore, the Petition was timely submitted to the Village Clerk.

            The Petition was signed by 78 electors residing in the Village.  (Id.).  360 electors in the Village had voted for governor at the next preceding general election for the office of governor.  (Id.).  Therefore the Petition contained more than twice the number of signatures required by the statute.

            The Clerk has refused to forward the petition to the Board in the time called for by the statute.

            C.        Relator has A Clear Legal Right But Lacks An Adequate Remedy.

            The Constitution and Revised Code grant to Relator the right of referendum with respect to the Ordinance.  By refusing to perform her legal duty to transmit the Petition to the Board, the Clerk has unlawfully prevented Relator from exercising constitutional and statutory referendum rights.  There is no question that mandamus is an appropriate remedy to compel the Clerk to perform her legal duty to transmit the Petition to the Board.  In similar cases, this Court has recognized the lack of a plain and adequate remedy at law and granted a writ of mandamus.  See, e.g., State, ex rel. Blackman v. Hitte (1983), 5 Ohio St. 3d 156, 159, 449 N.E.2d 1279, 1282.

            D.        Respondent’s Defenses Lack Merit.

            Respondent asserted eight affirmative defenses in her Answer.  Those defenses are, without exception, conclusory and unsupported by any factual averments.  None of them are supported by the evidence and none of them have any merit.

                        1.         The Complaint States A Claim For Relief.

            Respondent’s first defense posits that the complaint fails to state a claim upon which relief can be granted.  Relator alleged that he has a clear legal right to the relief sought, that Respondent has a clear legal duty to forward the Petition to the Board, and that Relator has no plain and adequate remedy in the ordinary course of law.  As such, the Complaint states a claim upon which relief can be granted.  State, ex rel. Hillyer, Judge v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 97, 637 N.E.2d 311, 317 citing State, ex rel. Manson v. Morris (1993), 66 Ohio St.3d 440, 441, 613 N.E.2d 232, 233-234; State, ex rel. Berger v. McMonagle (1993), 6 Ohio St.3d 28, 29, 451 N.E.2d 225, 226.

                        2.         This Court Has Subject Matter Jurisdiction.

            Respondent’s second defense posits that this Court lacks subject matter jurisdiction.  This Court has original jurisdiction over actions in mandamus under Article IV, Section 2(B) of the Ohio Constitution, Rule 10 of the Ohio Supreme Court and Ohio Revised Code Section 2731, et. seq.[2]  Pursuant to Ohio Revised Code Section 2731.01, this Court may issue a writ of mandamus “. . . in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”  A Village Clerk is subject to a writ of mandamus issued by this Court.  See, e.g., State, ex rel. Sinay v. Sodders (1997), 80 Ohio St. 3d 224, 685 N.E.2d 754; Blackman, supra.  Respondent’s second defense has no merit.

                        3.         Relator Acted Diligently.

            Respondent’s third and fourth defenses allege that Relator’s claims are barred by the doctrines of estoppel, waiver and/or laches.  In election matters, relators must act with the utmost diligence.  State ex rel. Vickers v. Summit County Council (2002), 2002 Ohio 5583, ¶13, 97 Ohio St. 3d 204, 205-206.  In this case, Relator acted with the requisite diligence by filing this action almost 11 months before the November 2003 election.  It was impossible for him to file this action in time for the Ordinance to be included on the November 2002 election ballot.  Neither estoppel nor laches bar this action.

            Waiver is a voluntary relinquishment of a known right. State ex rel. Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio St.3d 431, 435, 732 N.E.2d 960.  Respondent has alleged no facts and proffered no evidence establishing that Relator voluntarily relinquished any rights with respect to his mandamus claim.

                        4.         Relator May Prosecute This Action.

            Respondent’s fifth defense challenges Relator’s capacity, standing or right to maintain this action.  There is no dispute as to the operative facts supporting Relator’s right to pursue this matter: he is a registered voter residing in the Village (Webb Aff., ¶4a); he caused a true and accurate copy of the Ordinance to be filed with the Village Clerk after the Ordinance was passed but before circulating the Petition (Id., ¶4e); he circulated the Petition (Id.); and he delivered the Petition to the Village Clerk for her submission to the Board of Elections.  (Id., ¶4f).  In addition, the Minutes of the September 3, 2002 Council meeting reveal that he was one of nine residents to address Council in person or writing with respect to the Ordinance.

            An action in mandamus, where the relief sought is the enforcement of a public duty by a public officer or board, may be maintained by the relator, where he shows that he is a citizen and as such is interested in the execution of the laws.

State ex rel. Blackwell v. Bachrach (1957), 166 Ohio St. 301, 143 N.E.2d 127, Syllabus, Para. 1.  Clearly, Relator has standing and is otherwise authorized to maintain this action.

                        5.         Relator Has No Adequate Remedy At Law.

            As noted above, this Court has recognized the propriety and correctness of a writ of mandamus under circumstances similar to those presented here.  Relator seeks, and is entitled to, a writ of mandamus compelling Respondent to perform a legal duty.  In  State ex rel. Long v. Council of the Village of Cardington (2001), 2001 Ohio 130, 92 Ohio St. 3d 54, 748 N.E.2d 58, this Court held that an action “for a mandatory injunction … is an extraordinary remedy that does not preclude a writ of mandamus” to compel compliance with statutory duties.  92 Ohio St. 3d at 60, 748 N.E.2d at 64.  Respondent’s refusal to comply with the clear legal duty set forth in Revised Code Section 731.29 leaves Respondent with no available remedy except mandamus or mandatory injunction.

Proposition of Law No. II:     The Requirements of Revised Code Section 731.30 Cannot Be Satisfied By An Affidavit From A Village Clerk Purporting to State Reasons for A Village Council’s Passage of an Ordinance As An Emergency Measure.

            Section 731.30 is clear and specific.  The text of an ordinance passed as an emergency must contain a statement of the reasons for its passage as an emergency.

            Respondent is the clerk of the Village.  A member of the Village’s executive branch, Revised Code Section 733.23, Respondent’s duties are spelled out in Section 733.37 of the Revised Code.

            The Ordinance was passed by the Village Council, its legislative branch.  No provision of the Revised Code or the Ohio Constitution empowers the clerk of a village to alter or enlarge what a village legislative council stated or intended in the text of an ordinance, or to supply text missing from an ordinance enacted by that council.

            While the Respondent’s Affidavit vividly demonstrates the failure of the Ordinance to comply with Revised Code Section 731.30 (by stating reasons for its passage as an emergency measure in terms found nowhere in the text of the Ordinance), well-settled principles of statutory construction and fundamental municipal law obviously counsel against reference to or reliance upon that affidavit.  In Billington v. Cotner (1971), 25 Ohio St. 2d 140, 267 N.E.2d 410, this Court held that evidence outside of the legislative journal was not admissible to show that the Cleveland City Council acted other than as reflected in that journal.  25 Ohio St. 2d at 150, 267 N.E.2d at 417.  The Court also held that the clerk of a municipal legislative council “has no authority to certify to a board of elections an ordinance enacted by that council in a form different from that authenticated in the council's journal.”  25 Ohio St. 2d at 152, 267 N.E.2d at 418, citing Beck v. Cincinnati (1955), 162 Ohio St. 473.  Just as Respondent is not permitted to certify the Ordinance to the Board of Elections in a form different from that which was enacted by the Village Council, she cannot defeat Relator’s right to have the Ordinance certified to the Board by augmenting its text with language clearly required by statute.

CONCLUSION

            For the foregoing reasons, Relator respectfully urges this Court to grant a writ of mandamus compelling Respondent Village Clerk to perform her legal duty to transfer the Petition and certified copy of the Ordinance to the Ashtabula County Board of Elections so that the Board can perform the review required by Revised Code Section 731.29. 

                                                                        Respectfully submitted,

                                                                        __________________________________

Sheldon Berns (0000140)

Benjamin J. Ockner (0034404) (Counsel of

                        Record)

Berns, Ockner & Greenberger, LLC

3733 Park East Drive, Suite 200

Beachwood, OH 44122

Telephone: (216) 831-8838

Facsimile: (216) 464-4489

E-mail: sberns@bernsockner.com

E-mail: bockner@bernsockner.com

Attorneys for Relator

CERTIFICATE OF SERVICE

            The undersigned certifies that a true and accurate copy of the foregoing Brief of Relator was served on the following by regular U.S. Mail this 20^th day of March, 2003:

Stephen E. Chappelear

Anthony J. Miller

Hahn, Loeser & Parks LLP

1050 Fifth Third Center

21 East State Street

Columbus, Ohio  43215

                                                                        Benjamin J. Ockner