robert c. mcclelland, #0012352 - sconet.state.oh.us from the procedures and requirements of title 35...

IN THE SUPREME COURT OF OHIO

DAVID RZEPKA, et al.,

Appellants,

Case No. 2008-1303

On appeal from the Cuyahoga CountyCommon Pleas Court, Case No.CV 08-656878

CITY OF SOLON, et al.,

Appellees.

Appeal of Right From Final Decision In AnElection Contest (S.Ct.Prac.R. II, Sec.I(C)(2))

BRIEF OF AMICUS CURIAE PETER K. ORMONDIN SUPPORT OF APPELLEE, THE CITY OF SOLON

WARNER MENDENHALL, #0070165JACQUENETTE S. CORGAN, #0072778The Law Offices of Warner Mendenhall, Inc.190 N. Union St., Ste. 201Akron, OH 44304330-535-9160; fax [email protected] justice.comCounsel for Amicus Curiae Peter K. Ormond

JORDAN BERNS, #0047404SHELDON BERNS, #0000140BENJAMIN J. OCKNER, #0034404GARY F. WERNER, #0070591TIMOTHY J. DUFF, #0046764Berns, Ockner & Greenberger, LLC3733 Park East Dr., Ste. 200Beachwood, OH 44122216-831-8838; fax [email protected]&bernsockner.comp_werner a bernsockner.comtduff(a^bernsockner.comCounsel for Appellants David Rzepka, et al.

ROBERT C. McCLELLAND, #0012352DAVID J. MATTY, #0012335SHANA A. SAMSON, #0072871Rademaker, Matty, McClelland & Greve55 Public Sq., Ste. 1775Cleveland, OH 44113216-621-6570; fax 216-612-1127rmcclellandna,[email protected],rmglaw.comCounsel for Appellee, City of Solon

Solon Taxpayers Against RezoningKimberly A. Gerace, Treasurer6716 Solon Blvd.Solon, OH 44139Appellee

STEPHEN L. BYRON, #0055657REBECCA K. SCHALTENBRAND, #0064817Schottenstein, Zox & Dunn Co., LPAInterstate Square Building I4230 State Rte. 306, Ste. 204Willoughby, OH 44094440-942-7809; fax 216-621-5341sb ron^)a [email protected]

STEPHEN J. SMITH, #0001344Schottenstein, Zox & Dunn Co., LPA250 West St.Columbus, OH 43215614-462-2700; fax 462-5135ssmithna,szd.com

JOHN GOTHERMAN, #0000504Ohio Municipal League175 S. Third St., #510Columbus, OH 43215-7100614-221-4349; fax 614-221-4390Igothermanncolumbus.rr.comCounsel,for Amicus Curiae The Ohio Municipal League

2

TABLE OF CONTENTS

Table of Authorities ........ ............................................................................................................. ii.

Introduction ............................................................................................................................... 1.

Statement of Amicus Interest .................:.............................................................:........................ 2.

Statement of the Case and Facts ................................................................................................... 2.

Argument ...............................................................:............................................................... 3.

Proposition of Law No. 1: A claim that a municipal charter provision violatesEqual Protection is not an "irregularity" in the election process that can form thebasis of an election challenge . ............................................................................:............. 3.

Proposition of Law No. 2: "Ward veto" provisions such as Solon's do not violateEqual Protection . ...........................................:................................................................... 5.

Proposition of Law No. 3: "Ward veto" provisions like Solon's are not improperdelegations of legislative authority . ................................................................................ 10.

Conclusion ............................................................................................................................. 13.

Certificate of Service ...........................:...................................................................................... 14.

TABLE OF AUTHORITIES

Cases Page No.

Bella Vista Group, Inc. v. City ofStrongsville, unreported, Cuyahoga App. No.80832, 2002-Ohio-4434, 2002 WL 1986551 .................................................................... 7.

Bd. of Supervisors of Saeramento Cty. v. LocalAgency Formation Comm 'n qfSacramento Cty. (Calif 1992), 838 P.2d 1198 ........ .......................................................... 8.

Buckeye Community Hope Found. v. City of Cuyahoga Falls (1998), 82 Ohio St.3d 539,697 N.E.2d 181 ............................................................................................................... 11.

Bullockv. Carter (1972), 405 U.S. 134, 92 S.Ct. 849,31 L.Ed.2d 92 ......................................... 8.

City ofCuyahoga Falls v. Buckeye Community Hope Found. (2003), 538 U.S. 188,123 S.Ct. 1389, 155 L.Ed.2d 349 ............................................................................... 8, 12.

City ofEastlake v. Forest City Enterp., Inc. (1976), 426 U.S. 668, 96 S.Ct. 2358,49 L.Ed.2d 132 ............................................................................................................... 12.

City ofMobile v. Bolden (1980), 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 ...................... 9, 10.

City ofPhoenix v. Kolodziejski (1970), 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 .......... ...... 8.

Crane v. Perry Cty. Bd. of Elections, 107 Ohio St.3d 287, 2005-Ohio-6509,839 N.E.2d 14 ............................................................................................................... 3,4.

Davis v. Bandemer (1986), 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 ............................ 9, 10.

Eubankv. Richmond (1913), 226 U.S. 137 ................................................................................ 12.

Gaydosh v. City of Twinsburg Ins. Co., unreported, Suaunit App. No. 21491,2003-Ohio-5779, 2003 WL 22439748 ............................................................................. 7.

Harper v. Virginia Bd. ofElections (1966), 383 U.S. 663, 86 S.Ct. 1079,16 L.Ed.2d 169 ................................................................................................................. 8.

Holt Civic Club v. City ofTuscaloosa (1978), 439 U.S. 60, 99 S.Ct. 383,58 L.Ed.2d 292 . ................................................................................................................ 9.

In re Election Contest of Dec. 14, 1999 Special Election, 91 Ohio St.3d 302,2001-Ohio-45, 744 N.E.2d 745 ........................................................................................ 4.

In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk,Youngstown Mun. Court, 88 Ohio St.3d 258, 2000-Ohio-325,725 N.E.2d 271 ................................................................................................................. 3.

Indiana Gaming Comm'n v. Moseley (Indiana 1994), 643 N.E.2d 296 ................................... 8, 9.

Kinninger v. Tracy (Dec. 31 1992), unreported, Franklin App. No. 92AP-1 143,1992 WL 394908 .............................................................................................................. 4.

Kramer v. Union Free Sch. Dist. (1969), 395 U.S. 621, 89 S.Ct. 1886,23 L.Ed.2d 583 .. ............................................................................................................... 8.

McDonaldv. Bd ofElection Comm'rs of Chicago (1969), 394 U.S. 802,89 S.Ct. 1404, 22 L.Ed.2d 239 ......................................................................................... 7.

Mehling v. Moorehead ( 1938), 133 Ohio St. 395,110.0. 55, 14 N.E.2d 15 .............................. 4.

Mixon v. Ohio (6`h Cir. 1999), 193 F.3d 389 . ....................................................................... 7, 8, 9.

Mobile Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 67 0.O.2d 38,309 N.E.2d 900 ............................................................................................................... 11.

Moss v. Bush, 104 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107 ...................................... 4.

Prentiss v. Dittmer (1916), 93 Ohio St. 314, 112 N.E. 1021 ........................................................ 4.

Provance v. Shawnee Mission Unified Sch. Dist. No. 512 (Kansas 1982),

648 P.2d 710 ............. ................................................:....................................................... 8.

Rispo Investment Co. v. City ofSeven Hills ( 1993), 90 Ohio App.3d 245,629 N.E.2d 3 ........................................................................................................... 3, 7 11.

Roger v. Lodge ( 1982), 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 .................................. 10.

Romer v. Evans (1996), 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 47 .............. ....................... 9.

Seattle Trust Co. v. Roberge ( 1928), 278 U.S. 116 .................................................................... 12.

Shipan v. Slivka (Jan. 22, 1982), unreported, Cuyahoga App. No. 44779,1982 WL 2309 ...............................:.................................................................................. 4.

Squire v. Geer (April 8, 2008), _ Ohio St.3d , 2008-Ohio-1432,N.E.2d 2008 WL 913068 ............................................................................... 3.

State ex rel. Foreman v. Brown (1967), 10 Ohio St.2d 1398, 39 0.O.2d 149,226 N.E.2d 116 ................................................................................................................. 4.

iii

State ex rel. Humble Oil Co. v. Marion (1965), 4 Ohio App.2d 178,22 0.O.2d 234,211 N.E.2d 667 . ............................................................................................................... 11.

State ex rel. Ingerson v. Berry, 14 Ohio St. 315 .......:................................................................... 4.

State ex rel. Killeen Realty Co. v. East Cleveland ( 1958), 108 Ohio App. 99, 9 0.O.2d 153,79 Ohio Law Abs. 296, 153 N.E.2d 177 ........................................................................ 11.

Town ofLockport v. Citizens for Community Action (1977), 430 U.S. 259,97 S.Ct. 1047, 51 L.Ed.2d 313 .......... ................................................................... 3, 5, 6, 7.

Statutes and Constitutional Provisions

R.C. Title 35 ............................................................................................................................... 4.

R.C. Chap. 3515 ............................................................................................................................ 4.

Amendment XIV, U.S. Constitution . ...:............................................................................... passim.

Section lf, Article II, Ohio Constitution ..................................................................................... 11.

iv

INTRODUCTION

The Appellants, led by Mr. Rzepka, challenge the March 4, 2008, ballot defeat of City of

Solon Issue 44, which would have rezoned more than 200 acres of land in Solon's Ward 5 to

allow senior-citizen cluster homes. Article XIV, Sections 1 and 2 of Solon's Charter require

Solon City Council to submit all zoning district and classification changes to Solon's electorate

for a referendum. For any zoning change to go into effect, Solon's Charter requires that the

zoning issue receive not only a majority vote citywide, but also a majority vote in the ward or

wards affected by the rezoning. The requirement that a provision pass in the ward as well as

citywide is often called a "ward veto" provision.

When Solon City Council presented Issue 44 to the voters, it won majority approval

citywide - but not in Ward 5. Because of this, the Appellants claim that Solon's "ward veto"

charter provision is an Equal Protection violation and an "election irregularity."

1

STATEMENT OF AMICUS INTEREST

Amicus Curiae Peter K. Ormond is a Solon resident, taxpayer and elector who has filed

several taxpayer lawsuits against the City of Solon in zoning matters, seeking to have Solon

comply with the very section of its Charter that is at the heart of this case. In addition, Ormond

moved the Cuyahoga County Common Pleas Court for leave to intervene on the City of Solon's

side in the underlying lawsuit, but the court denied his motion.

STATEMENT OF THE CASE AND FACTS

Amicus Curiae Ormond adopts the statement of facts presented by the City of Solon in

this matter.

2

ARGUMENT

Proposition of Law No. 1: A claim that a municipal charter provision violates Equal

Protection is not an "irregularity" in the election process that can form the basis of an

election challenge.

The challengers in this case try to use Ohio's election laws to make an end run around the

longstanding presumption that municipal charter provisions, just like any piece of municipal

legislation, are presumed to be valid and constitutional.'

Ohio's courts, however, are very reluctant to interfere with elections, and afford an

election every reasonable presumption in favor of upholding its validity.2 An election will bek .

overturried only when there are extreme circumstances that affect the integrity of the election

itself; therefore, in order to prevail in an election contest, Rzepka and his fellow challengers must

establish by clear and convincing evidence that one or more election irregularities occurred that

affected enough votes to change the outcome, or make the outcome uncertain.3

The challengers claim that an alleged violation of Equal Protection constitutes an election

"irregularity." Their argument is not supported by the law or the facts. First, an alleged violation

1 See, e.g., Rispo Investment Co. v. City ofSeven Hills (1993), 90 Ohio App.3d 245, 253, 629N.E.2d 3; Town ofLockport v. Citizens for CommuniryAction (1977), 430 U.S. 259, 272-273, 97S.Ct. 1047, 51 L.Ed.2d 313.

2 See, e.g., Squire v. Geer (Apri18, 2008), _ Ohio St.3d _, 2008-Ohio-1432, ¶ 14, _N.E.2d _, 2008 WL 913068; Crane v. Perry Cty. Bd of Elections, 107 Ohio St.3d 287, 2005-

Ohio-6509, ¶¶ 18-19, 839 N.E.2d 14; In re Election Contest of Democratic Primary Held May 4,

1999for Clerk, Youngstown Mun. Court, 88 Ohio St.3d 258, 262, 2000-Ohio-325, 725 N.E.2d

271.

3 See, e.g., Geer, supra at ¶ 16; Perry, supra at ¶¶ 21-22; Youngstown Mun. Court, 88 Ohio St.3d

at 263.

3

cannot constitute the kind of clear and convincing evidence required to overturn an election.

Second, an alleged Equal Protection violation does not constitute an election "irregularity."

Revised Code Title 35 does not define election or voting "irregularities." Deviations

from the procedures and requirements of Title 35 are considered "irregularities" for R.C. Chap.

3515 purposes, but an election contest is the way to correct only errors, mistakes and frauds that

occur in the process of determining the public will 4 Furthermore, "irregularities, which were not

caused by fraud and which have not interfered with a full and fair expression of the voters'

choice, should not effect a disenfranchisement of the voters."5

Examples of actual "irregularities" include:

♦1^• The denial of a ballot to an eligible voter;6

•. Differences between vote totals in poll books and voting machines;7

Uncounted ballots; and8

Incorrect ballot language;9

4 See, e.g., Perry„ supra, ¶ 26; Moss v. Bush, 104 Ohio St.3d 1429, 2004-Ohio-6794, 819 N.E.2d

711; State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107;Prentiss v. Dittmer (1916), 93 Ohio St. 314, 321, 112 N.E. 1021, quoting State ex rel. Ingerson v.Berry, 14 Ohio St. 315.

5 In re Election Contest of Dec. 14, 1999 Special Election, 91 Ohio St.3d 302, 306, 2001-Ohio-45, 744 N.E.2d 745, quoting Mehling v. Moorehead (1938), 133 Ohio St. 395, 406,110.0. 55,14 N.E.2d 15, and citing State ex rel. Foreman v. Brown (1967), 10 Ohio St.2d 1398, 39 0.O.2d149, 156, 226 N.E.2d 116.

6 See Shipan v. Slivka (Jan. 22, 1982), unreported, Cuyahoga App. No. 44779, 1982 WL 2309.

7In re Election Contest of Dec. 14, 1999, supra

8 See Shipan, supra.

9 See Kinninger v. Tracy (Dec. 31, 1992), unreported, Franklin App. No. 92AP-1143, 1992 WL

394908.

4

The challengers do not claim that anyone denied them a ballot, that anyone prevented

them from voting on Issue 44, or that the language on the ballot that described Issue 44 to voters

was inaccurate or misleading. They also do not claim that Solon officials or anyone else engaged

in any form of fraud to influence the outcome. Since they have not presented any evidence

(much less clear and convincing evidence) of any recognized election irregularity, their claim

should fail.

Proposition of Law No. 2: "Ward veto" provisions such as Solon's do not violate EqualProtection.

This issue was decided by the United States Supreme Court in 1977 in Town of Lockport

v. Citizens for Community Action.10 In that case, the Court held that the Equal Protection Clause

of the Fourteenth Amendment to the United States Constitution is not offended when a state

requires that a legislative act receive not only an overall majority vote, but a majority vote in a

geographical area most affected by the legislation, in a referendum. The Lockport case involved

provisions in New York's Constitution and Municipal Home Rule Law that allowed counties to

enact charters to effect local self-government, but mandated that the charters be submitted to

referendum votes in which they had to receive not only a majority of municipal electors' votes,

but a majority of town' 1 Electors' votes. In Niagara County, two such charter proposals (in 1972

and in 1974) failed when they received a majority of the votes countywide and in Niagara

10 Town of Lockport v. Citizens for Community Action (1977), 430 U.S. 259, 97 S.Ct. 1047, 51L.Ed.2d 313.

11 In New York, "towns" are roughly equivalent to Ohio's "townships." The Town of Hamburgin Erie County, south of Buffalo, is an example.

5

County's municipalities, but failed to garner a majority of the votes in Niagara County's

unincorporated towns.

The county charter's supporters challenged New York's requirements as violating equal

protection principles, saying the requirements placed disproportionate weight on the votes cast

by people living outside Niagara County's municipalities, and therefore ran afoul of the "one

man-one vote" doctrine applicable to elections for legislative representatives.

The Supreme Court rejected that argument. "The equal protection principles applicable in

gauging the fairness of an election involving the choice of legislative representatives are of

limited relevance, however, in analyzing the propriety of recognizing distinctive voter interests

in a`single-shot' referendum."12 The Court specifically permitted governments to distinguish

among voters on the basis of a legislative act's impact, so long as the group of voters affected by

the legislative act could be ascertained with precision.13 "If [an issue] is found to have such a

.disproportionate impact, the question then is whether a State can recognize that impact either by

limiting the franchise to those voters specially affected or by giving their votes a special

weight.i14

In the majority opinion, Justice Stewart wrote, "it appears that the challenged provisions

of New York law rest on the State's identification of the distinctive interests of the residents of

the cities and towns within a county rather than their interests as residents of the county as a

homogenous unit. This identification is based in the realities of the distribution of governmental

powers in New York, and is consistent with our cases that recognize both the wide discretion the

12 Lockport, 430 U.S. at 266.

13 rd at 266-277.

14 Lockport, 430 U.S. at 266, emphasis added.

6

States have in forming and allocating governmental tasks to local subdivisions, and the discrete

interests that such local governmental units may have qua units."15 Based on Lockport, the

Eighth District Court of Appeals decided that ward veto provisions present in the charters of

Seven Hills, Fairview Park, and Strongsville are constitutional. 1 6

Facial challenge. Nevertheless, the first step in deciding an equal protection claim is to

decide what level of review is appropriate: strict scrutiny, intermediate scrutiny, or rational basis

review.'7 Courts apply strict scrutiny when the legislative classification at issue involves a

fundamental right or a suspect class.18 The right to vote is fundamental - but if the challenged

law does not infringe on the right to cast a ballot, then the law should be examined under the

rational basis standard, which grants legislation a Strong presumption of validity.19 Nothing in

Solon's Charter infringes on the right ofall Solon electors to vote on zoning issues - no

residents are excluded from participation20 - so the rational basis standard applies to the

question before the Court.

15 Lockport, 430 U.S. at 268-269, citations omitted.

16 See Rispo, 90 Ohio App.3d at 258-259; see also Bella Vista Group, Inc. v. City ofStrongsville,unreported, Cuyahoga App. No. 80832, 2002-Ohio-4434, 2002 WL 1986551, ¶¶ 34-37. TheNinth District indirectly recognized an even more stringent form of ward veto, in which any

ward could defeat a zoning change, in State of Ohio ex rel. Gaydosh v. City of Twinsburg Ins.Co.,unreported, Summit App. No. 21491, 2003-Ohio-5779, 2003 WL 22439748.

17 See, e.g,. Mixon v. Ohio (6" Cir. 1999), 193 F.3d 389, 402; State v. Thompson, 95 Ohio St.3d

264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 22.

18 See Mixon, id.

19 See Mixon, 193 F.3d at 402, 403; see also McDonald v. Bd. of Election Comm'rs of Chicago

(1969), 394 U.S. 802, 807-808, 89 S.Ct. 1404, 22 L.Ed.2d 239.

20 See Mixon, 193 F.3d at 405, citing Kramer v. Union Free Sch. Dist. (1969), 395 U.S. 621,629-630, 89 S.Ct. 1886,23 L.Ed.2d 583.

7

Plus, the United States Supreme Court and other courts have distinguished between

elections in which voters choose a public official to represent them (in Congress, for example),

and elections in which voters decide on an issue, such as in a referendum.21 Classifications

restricting the elective franchise (other than age, residence, and citizenship) in elections for

representatives often trigger a strict scrutiny analysis and invoke the "one man, one vote"

doctrine.22

Classifications among voters in referenda, on the other hand, are upheld so long as they

bear some rational relationship to a legitimate state end, and the voting power of one group is not

purposely and invidiously diminished.23 After all, "we have observed that `[p]rovisions for

referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice."'24

A party challenging a statutory classification = or, in this case, a ward veto provision -

bears the bu#kn of proving that it bears no rational relationship to a legitimate state interest.z5

21 See, e.g., Provance v. Shawnee Mission Unified School Dist. No. 512 (Kansas 1982), 648 P.2d710.

22See Provance, 648 P.2d at 714.

23See Bd of Supervisors of Sacramento Cty. v. Local Agency Formation Comm'n of Sacramento

Cty. (Calif. 1992), 838 P.2d 1198, 1204, citing Harper v. Virginia Bd. Of Elections (1966), 383U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169; Provance, 648 P.2d at 715; Indiana GamingComm'n v. Moseley (Indiana 1994), 643 N.E.2d 296, 304; see also Bullock v. Carter (1972), 405U.S. 134, 144, 92 S.Ct. 849, 31 L.Ed.2d 92; City of Phoenix v. Kolodziejski (1970), 399 U.S.204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (restricting franchise to property owners in bond issue notrationally related to legitimate government interest).

24 City ofCuyahoga Falls, Ohio v. Buckeye Community Hope Found (2003), 538 U.S. 188, 196,123 S.Ct. 1389, 155 L.Ed.2d 349.25

See Moseley, 643 N.E.2d at 304; Thompson, ¶ 26-27.

8

Claims that a law is unwise, that it works to a particular group's disadvantage, or that its

rationale is tenuous will not suffice?6

Equal protection also does not guarantee that any particular protected group's preferred

candidate must win, or that any particular side of a referendum issue must win.27 It also does not

prevent cities from excluding nonresidents from voting in city elections, even when the city has

some limited authority over the nonresidents?g

Even in apportionment cases, unconstitutional discrimination occurs only "when the

electoral system is arranged in a manner that will consistently degrade a voter's or a group of

voters' influence on the political process as a whole."29 To find an equal protection violation,

there must be evidence that a particular group's voice has been consistently stifled, and the

results of a single election will not suffice.3o

There is no evidence, and there is no claim, that any group of Solon voters has been

consistently thwarted at the polls. The Solon Charter's "ward veto" provision's requirement that

the voters in the ward(s) affected by a zoning change bears a rational relationship to a legitimate

governmental interest. It is beyond cavil that zoning is an exercise of a government entity's

police power, and that maintaining the essential character of a neighborhood, for better or worse,

26 See Romer v. Evans (1996), 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855.

27 See City,ofMobile, Alabama v. Bolden (1980), 446 U.S. 55, 75, 100 S.Ct. 1490,64 L.Ed.2d

47; Moseley, 643 N.E.2d at 305.

28 See Mixon, 193 F.3d at 405; see also Holt Civic Club v. City of Tuscaloosa (1978), 439 U.S.

60, 99 S.Ct. 383, 58 L.Ed.2d 292.

29 Davis v. Bandemer (1986), 478 U.S. 109, 132, 106 S.Ct. 2797, 92 L.Ed.2d 85.

30 See Bandemer, 478 U.S. at 133, 134; see also Bolden, 446 U.S. at 70; Rogers v. Lodge (1982),458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012.

9

is part of that. Solon's requirement, which was itself approved by Solon's voters, appropriately

allows the electors in the affected ward the final word about the character of their neighborhood.

There is no reason, then, to invalidate Solon's "ward veto" provision.

As applied. The challengers, however, also ask the court to invalidate this provision on

an "as applied" basis. Their argument is meritless for two reasons. First, Solon's Charter, as

written, only requires that a zoning provision receive a majority of the votes citywide, and in the

ward(s) in which the rezoned land sits. The fact that Issue 44 did not receive a majority of the

votes in Ward 5 is the only reason the rezoning did not go into effect. No Solon official

exercised any discretion in the matter, and no Solon official could.

Second, the challengers' argument is that fewer residents of Ward 5 would be affected by

passage of Issue 44 than in other wards, and therefore, Solon's Charter ought not to apply to

Issue 44. The argument is misplaced. It calls for a revision of Solon's Charter, and that is a

political question that belongs in either the Solon City Council or the city's charter review

commission - but not in this Court.

Proposition of Law No. 3: "Ward veto" provisions like Solon's are not improper delegationsof legislative authority.

Finally, Issue 44's challengers claim that "ward veto" provisions are improper delegations

of legislative authority. They are not, as the Eight District said in Rispo. There, "ward veto"

opponents "argue[d] the ward approval requirement impermissibly `gives absolute, unconfined

and undirected power to both legislative and administrative action of the city' to a`minority' of

residents, [but] in actuality it is a procedure for reserving to the people of the municipality their

power to approve a change in the existing zoning standards. There is nothing in the United States

Constitution or the law as promulgated by the United States Supreme Court which indicates a

10

consent procedure such as a referendum which exists in the cases sub judice is an impermissible

`delegation of the legislative power."' 31

At the Common Pleas Court, the challengers argued that Buckeye Community Hope

Found v. City of 'Cuyahoga Falls32 overruled Rispo. It did not. Buckeye Community Hope

challenged the validity of Cuyahoga Falls' referendum procedure for all actions by its city

council, even actions - specifically, approval of a site plan without any zoning changes -

categorized as "administrative" rather than "legislative." No matter how Cuyahoga Falls labeled

its actions, initiatives and referenda can only be used pursuant to Section 1 f, Article II of the

Ohio Constitution to challenge legislative actions, not administrative actions.

Just as in Rispo, this case involves a legislative action, because it is settled law that

zoning changes - and sometimes, wholesale approvals of zoning variances that amount to de

facto zoning changes - are legislative actions. 33

Furthermore, this case does not involve the kind of abdication of legislative power that

occurred in cases such as Eubank v. Richmond, 34 and Seattle Trust Co. v. Roberge.35 In those

cases, individuals were given power to dictate public policy by granting or withholding their

written consent; this case involves a referendum, and the United States Supreme Court has said

31 Rispo, 90 Ohio App.3d at 259.

32Buckeye Community Hope Found v. City of Cuyahoga Falls (1998), 82 Ohio St.3d 539, 697

N.E.2d 181.

33 See, e.g., State ex rel. Humble Oil Co. v. Marion (1965), 4 Ohio App. 2d 178, 180, 33 OhioOp.2d 234, 211 N.E.2d 667; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 67 OhioOp.2d 38, 309 N.E.2d 900; State ex rel. Killeen Realty Co. v. East Cleveland (1958), 108 OhioApp. 99, 9 Ohio Op.2d 153, 79 Ohio Law Abs. 296, 153 N.E.2d 177.

34 Eubank v. Richmond (1912), 226 U.S. 137.

35Seattle Trust Co. v. Roberge (1928), 278 U.S. 116.

11

the referendum power is one the people have reserved to themselves.36 Furthermore, the United

States Supreme Court stated in City of Eastlake v. Forest City Enterp., Ine., 37 that "the

standardless delegation of power to a limited group of property owners condemned by the Court

in Eubank and Roberge is not to be equated with decisionmaking by the people through the

referendum process. ... `A referendum, ... is far more than an expression of ambiguously

founded neighborhood preference. It is the city itself legislating through its voters an exercise by

the voters of their traditional right through direct legislation to override the views of their elected

representatives as to what serves the public interest.`38 A referendum, then, cannot be

characterized as an unlawful delegation of power.39

Solon's charter provision is not a "standardless delegation of power to a limited group of

property owners." Instead, it allows Solon's voters noting more than their traditional right to

override the views of their City Council as to what serves the public interest. As such, it should

be upheld.

CONCLUSION

36See Lockport, supra; see also Rispo, 90 Ohio App.3d at 257.

37 City of Eastlake v. Forest City Enterp., Inc. (1976), 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d132.

38Forest City, 426 U.S. at 678, citation omitted.

39 See City of Cuyahoga Falls v. Buckeye Community Hope Found. (2003), 538 U.S. 188, 199,

123 S.Ct. 1389, 155 L.Ed.2d 349.

12

City of Solon Issue 44 did not fail because of any fraud, niistake, or other "irregularity"

in the voting process. It failed because Solon's Charter, which itself was approved by a citywide

majority vote, requires zoning changes to receive a majority vote citywide, and a majority in the

affected city ward, and Ward 5 voters voted against it. This court shouldn't rewrite Solon's

Charter, because it does not violate Equal Protection. On these grounds, Amicus Curiae Peter K.

Ormond respectfully asks the court to AFFIRM the decision of the Cuyahoga County Common

Pleas Court in dismissing this case.

Respectfully submitted,

141111,4Warner Mendenhall, #0070165Jacquenette S. Corgan, #0072778The Law Offices of Warner Mendenhall, Inc.190 N. Union St., Ste. 201Akron, OH 44304330-535-9160; fax 330-762-9743warnermendenhallna,hotmail.comi.corgan(a^(ajustice.com

Counsel for Amicus Curiae Peter K. Ormond

13

CERTIFICATE OF SERVICE

^

A copy of the foregoing was served on December 2008, upon the following byregular U.S. Mail:

Jordan BemsBerns, Ockner & Greenberger, LLC3733 Park East Dr., Suite 200Beachwood, OH 44122Counsel of Record for Appellants

Robert C. McClellandRademaker, Marry, McClelland & Greve55 Public Sq., Ste. 1775Cleveland, OH 44113Counsel of Record for Appellee City of Solon

"SoIQn Taxpayers Against RezoningY,itnberly A. Gerace, Treasurer6716 Solon Blvd.Solon, OH 44139Appellee

Stephen L. ByronSchottenstein, Zox & Dunn Co., LPAInterstate Square Building I4320 State Route 306, Ste. 240Willoughby, OH 44094Counsel of Record, for Amicus CuriaeThe Ohio Municipal League

One ot the Attorneys for AmicusCuriae Peter K. Ormond

14

ot 17

Westlaw,.Not Reported in N.E.2dNot Reported in N.E.2d, 2002 WL 1986551 (Ohio App. 8 Dist.), 2002 -Ohio- 4434(Cite as: 2002 WL 1986551 (Ohio App. 8 Dist.))

CHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

LEGAL AUTHORITY.

Court of Appeals of Ohio, Eighth District,Cuyahoga County.

BELLA VISTA GROUP, INC., et al, Plaintiffs-Appellants,

V.CITY OF STRONGSVILLE, et al., Defendants-ap-

pellees.No. 80832.

Decided Aug. 29, 2002.

Property owhers filed complaint against city chal-^^ .4pijging constitutionality of city's residential zoning

cfassif-ication and constitutionality of city's rezon-,ing referendum. The Court of Common Pleas,^Cuyahoga County, granted summary judgment tocity. Owners appealed. The Court of Appeals, AnnDyke, J., held that: (1) city's rejection of rezoningapplication was reasonable, and (2) city's rezoningreferendum process was constitutional.

Affirmed.

West Headnotes

[1] Zoning and Planning 414 C=168.

414 Zoning and Planning414II1 Modification or Amendment

414111(A) In General414k167 Particular Uses or Restrictions

414k168 k. Change from ResidentialUse to Business, Commercial, or Industrial Use.Most Cited CasesCity's rejection of application to rezone area fromsingle-family residential use to general business/commercial use was reasonable and substantiallyadvanced a legitimate govcrnmental interest; city

Page 1

had an interest in maintaining area as residential forpurposes of continuity and as a buffer to nearbycommercial area, and city offered expert testimonyof professional city planner that residential zoningwas appropriate.

[2] Zoning and Planning 414 (D=191

414 Zoning and Planning414111 Modification or Amendment

4141II(B) Manner of Modifying or Amending414k191 k. In General. Most Cited Cases

Charter municipality's rezoning referendum proced-ure, under which a referendum provision requiredapproval by majority vote city-wide and majorityvote in war(l. in which property was situated, was

'constitutional

'..

Civil appeal from the Court of CommoV Pleas,Case No. CV-369687.David R. Harberger, Esq., Ainic L. Bruggeman,Esq., Mark C. Terzola, Esq., Alisa W. Wright, Esq.,Roetzel & Andress, Akron, OH, for plaintiffs-ap-pellants.James A. Climer, Esq., John T. McLandrich, Esq.,Mazanec, Raskin & Ryder, Cleveland, OH, Ken-neth Kraus, Esq., Law Director, John D. Ryan,Esq., Asst. Law Director, Strongsville, OH, for de-fendants-appellees.

ANN DYKE, J.*1 (9[ 1) Appellants, Bella Vista Group, Inc.,Jimmy and Doris Smith, Larry and Nancy Willi-ams, Carl and Gwendolyn Trapp and NormaBrown, (collectively referred to as the"appellants"), appeal from the decision of theCuyahoga County Court of Common Pleas whichupheld the constitutionality of the City of Strongs-ville's residential zoning classification and its zon-ing referendum process. For the reasons that follow,we afFrm the judgment of the trial court.

{9[ 2} The appellants filed their complaint againstthe City of Strongsville ("City") on November 16,

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Not Reported in N.E.2dNot Reported in N.E.2d, 2002 WL 1986551 (Ohio App. 8 Dist.), 2002 -Ohio- 4434(Cite as: 2002 WL 1986551 (Ohio App. 8 Dist.))

1998 challenging the constitutionality of the City's ment.residential zoning classification (Count I), the con-stitutionality of the City's rezoning referendum pro-cess (Count fI) and for damages (Count III). Theparties filed cross-motions for summary judgment,responsive briefs and supporting evidence.

{9[ 31 In its July 28, 2000 journal entry the trialcourt denied the appellant's motion for summaryjudgment as to all claims and granted the City's mo-tion for summary judgment on Count II, ruling thatthe change in zoning would constitute a legislativeaction and the rezoning referendum requirementwas constitutional. The parties then stipulated thatthe trial court should proceed as the finder of factand determine the merits of Count I, based upon thebriefs and frted joint stipulations of fact. By its Oc-tober 11, 2000 entry, the trial court denied the ap-pellant's motion for summary judgment as toCounts I and II, dismissed Counts III and IV F^''regarding damages as moot, and granted the City'smotion for summary judgment.

FNI. Although the appellants' complaintdoes not contain a separately captionedCount IV, the trial court divided its requestfor damages for both Bella Vista Group,Inc. and the home owners.

{9[ 4} On November 13, 2000, the appellants filedtheir appeal of the trial court's denial of their mo-tion for summary judgment and grant of the City'scross-motion for summary judgment. This courtfound that because the appellants' complaint soughtdeclaratory relief, the trial court's orders were notfinal and appealable and the trial court was requiredto declare the rights of the parties. See Bella VistaGroup, Inc. v. Ctty (Sept. 6, 2001), Cuyahoga App.No. 78836.

{15} Thereafter, on January 7, 2002, the trial courtfound that the City's residential zoning ordinanceand/or classification was constitutional as appliedand that the City's Charter provision requiring voterapproval for rezoning was constitutional. The ap-pellants then filed the instant appeal of this judg-

Page 2

(9[ 61 The appellants are the individual owners of17 parcels of land located in the City of Strongs-ville and the proposed developer of the land. Thisdispute concerns 17 bowling alley shaped parcels(the "properties") that are currently zoned forsingle-family residential use. The properties fronton Whitney Road between Pearl Road and Inter-state 71. The properties currently contain occupiedsingle-family residential homes, save one vacantwooded lot. The owners of the properties enteredinto option contracts with the developer, BellaVista Group, Inc. ("Bella Vista"), for the sale of theproperties contingent upon the successful rezoningto general business/commercial use. It is BellaVist•a's intention to develop a retail shopping centeron the properties.

*2 (17) Bella Vista has filed three separate rezon-ing applications with the City. Bella Vista submit-ted itsfirst rezoning application on May 9, 1997which was approved by the City's planning com-mission and by the city council for placement onthe November 1997 general election ballot. Therezoning issue was approved by a majority of thevoters city-wide but was defeated by a majorityvote in Ward 1, the ward in which the properties aresituated. Bclla Vista amended and resubmitted asecond rezoning application on December 9, 1997,and a third rezoning application on May 13, 1998,both of which were approved by the planning com-mission but rejected by the city council. Neither ofthe rezoning applications were placed on the City'sgeneral election ballot.

(9[8) The appellants' first assignment of error sub-niitted for our review is as follows:

(T 9) The trial court erred in determining that theCity's rejcction of Appellants' rezoning applicationwas reasonable, substantially advanced a legitimategovernmental interest and was therefore constitu-tional.

{1 101 We review the trial court's judgment to de-


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termine whether it was supported by competent andcredible evidence. Stiemo v. MayFeld Hts. (2000),88 O6io St.3d 7, 10, 722 N.E.2d 1018. Judgmentsthat are supported by some competent, credibleevidence going to the essential elements of the casewill not be reversed on appeal as being against themanifest weight of the evidence. C.E. Morris Co. v.Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376N.E.2d 578, syllabus. The standard governing ourreview of the constitutionality of the City's residen-tial zoning ordinance is set forth in Goldberg Co.,btc. v. Richneond Hts. City Council (1998), 81 OhioSt.3d 207, 214, 690 N.E.2d 510, as follows:

(9[ 11) "[A] zoning regulation is presumed to beconstitutional unless determined by a court to beclearly arbitrary and unreasonable and without sub-stantial relation to the public health, safety, morals,or general welfare of the community. The burden ofproof remains with the party challenging an ordin-ance's constitutionality and the standard of proof re-mains `beyond fair debate.' "

{9[ 72) Our review begins with the presumption thatthe City's zoning ordinance is constitutional. Cent.Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d581, 583-584, 653 N.E.2d 639. We also recognizethat "a municipality may properly exercise its zon-ing authority to preserve the character of designatedareas in order to promote the overall quality of lifewithin the City's boundaries." Id. at 585, 653N.E.2d 639.

[1] {1 13}.Thus the question before this court iswhether the appellants have proved beyond a fairdebate that the residential zoning ordinance as ap-plied herein was clearly arbitrary and unreasonableand had no substantial relation to the public health,safety, morals or general welfare of the City.

(9[ 14) The courts are limited in that "[t]he legislat-ive, not the judicial, authority is charged with theduty of determining the wisdom of zoning regula-tions, and the judicial judgment is not to be substi-tuted for the legislative judgment in any case inwhich the issue or matter is fairly debatable. Even

Page 3

though the court, on the facts presented, might de-cide otherwise than did council, so long as the mat-ter is reasonably debatable, the court has no author-ity to interfere. The power of a municipality to es-tablish zones, to classify property, to control trafficand to determine land-use policy is a legislativefunction which will not be interfered with by thecourts unless such power is exercised in such an ar-bitrary, confiscatory or unreasonable manner as tobe in violation of constitutional guaranties." Willott

v. Beachwood (1964), 175 Ohio St. 557, 560, 197N.E.2d 201.

*3 (y[ 15)"The zoning ordinance at issue, ArticleVIII, Section 6 of City's Charter, mandates that azoning classification cannot be changed fromsingle-family residential to any other classificationunless the change has been adopted in accordancewith the legislative procedures approved by a ma-jority of the electors in the City and a majority ofthe electors in the ward in which the property islocated.

(9[ 16} While the appellants describe the propertiesat issue as an island sutTounded by a sea of high-ways and commeteial` developitient; this picture. isincomplete. The-po"riies include 17vvnoded Iotscurrently occupied by residential homes on a totalof approximately 30 acres. Neighborhoods of occu-pied single-family residential dwellings lie to theeast and occupied multi-family dwellings are imme-diately south of the propertles at issue. Althoughthere is commercial development to the north of theproperties and to the west along Pearl Road, thearea just west of Pearl Road is primarily composedof single-family residential dwellings.

{9[ 77) Topographical maps demonstrate that thereis a 13-foot embankment between the woodednorthern boundariesof the properties and the fin-ished floor elevation of the Wal-Mart store. Most ofthe parcels at issue are over 800 feet deep and thedense vegetation on the properties blocks the viewof the commercial development to the north.

(I 18) The appellants argue that, (1) the city coun-


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cil approved the first rezoning application whicheliminated the possibiGty that the City had a gov-ernmental interest in retaining the residential natureof the properties; (2) the City has recommendedthat a portion of the property be rezoned for com-mercial use in its own studies contemplating com-mercial development; (3) it is unconstitutional todeny the rezoning of property where the characterof the neighborhood has dramatically changed, cit-ing commercial use, increased traffic and crime.

(91 191 Our review of the evidence reveals that theCity has discussed the redevelopment and revitaliz-ation of the corner of Whitney and Pearl Roads.However, rezoning has not been presented for avote and, in any event, the proposed rezoningwould only affect a small wedge of the properties(4 of the 17 parcels) at issue herein."^2This does-not obviate the City's interest in maintaining_thenature of that area as residential for the purposes ofcontinuity and as a buffer to the commercial area tothe north and along Pearl Road. Further, the citycouncil is not obligated to place each and everyrezoning application on the general election ballotand may vote against its placement before the elect-orate:::

FN2. This corner is currently occupied bya beverage store and several motels.

(y( 20) In support of the contenuon that the neigh-borhood has dramatically changed, the appellantsoffered the expert testimony of architect and landuse planner, Richard Kraly. Kraly determined thatsingle-family residential zoning was inappropriatefor the properties as the area lacks residentialneighborhood qualities. In support of this proposi-tion, Kraly states that children are unable to play orride their bicycles in the street because they arefaced with the perils of traffic. However, this is il-logical and would be the case in any residentialneighborhood.

"4 (9[ 21) The appellants rely on a string of cases insupport of their contention that the nature of theneighborhood has dramatically changed and tltat it

Page 4

is unconstitutional to deny ttte rezoning of the prop-erties.'T'3However, we find that each of thesecases is distinguishable on its facts because theproperties mostly consisted of 1 to 3 parcels of landwhich were effectively surrounded by non residen-tial uses. As stated, the properties at issue hereinconsist of 17 parcels on approximately 30 acres ofwooded land with residential uses to both the southand east.

FN3. Standard Oil Co. v. Citl, of Warreas-ville Hts (1976), 48 Ohio App.2d 1, 355N.E.2d 495; Centrai Motors Corp. v. Cit ,of Pepper Pike (1979), 63 Ohio App.2d 34,409 N.E.2d 258;Daus v. City of PepperPike (Jun. 7., 1984), Cuyahoga App. No.47411;Tyler v. Citv of North Rovalton(Oct. 27, 1983), Cuyahoga App. No.46316, and Mayfleld Dorsch v. City ofSouth E{iclid (1981), 68 Ohio St.2d 156,429 N.E.2d 159.

($ 22) In fact, the appellants cite only two zoningchanges in the vicinity of the properties which per-mitted the construcuon of additional apartmentcpmple7tes to-thesouth, and the construction of theV[fal Mart; Builders Square and Salvation ArmyThrift Store to the north of the properties. We notethat there have historically been business alongPearl Road and at the corner of Whitney and PcarlRoads. Without evidence to the contrary, we pre-sume that the Ohio Turnpike, Interstate 71, Pearl,and Whitney Roads have all been in the vicinity ofthe properties from the date the appellants' pur-chased the properties.v"'

FN4. The evidence does not reveal thedates on which the appellant home ownerspurchased their respective parcels.

(9[23) The appellants contend that commercial useis the highest and best use of the properties.However, the law in Ohio is clear that, "[a]landowner does not have a right to have his landzoned for its most advantageous economic use; themere fact that the property would be substantially


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.W,


more valuable if used an alternate way is, in itself,insufficient to invalidate an existing zoning ordin-ance." Sntythe v. Butler Tivp. (1993), 85 OhioApp.3d 616, 621, 620 N.E.2d 901.

(T 24) The City argues that the residential zoningordinance advances two legitimate governmentalinterests: (1) to maintain continuity; and (2) tomaintain the balance among the various zoningclassifications in the City. The City argues that theproperties have been zoned single-family residen-tial and that this portion of Whitney Road is theprimary means of ingress and egress to the predom-inantly residential northeast section of the City andis immediately adjacent to multi-family residentialhousing.

{y[ 25) Thc City offered the expert testimony of,.. ...Robert Hill, a professional city planner, whoopinedthat the wooded north-end of the properties are auniquely appropriate borderline between the landused for business use and the land zoned for resid-ential uses to the south and east. Hill also statedthat the property has been zoned for residential usefor over 40 years and that the area is the primary in-grm and egrgss for the predominantly resiclentiaPnortheast section of the City. Therefore, the resid-ential use on the properties maintains the continuityof the residential character of this section of theCity. Hill opined while other zoning classificationsmay be appropriate to one degree or another, theresidential zoning "comports with generally-accep-ted land use and community planning principlesand bears a substantial relationship to the publichealth, safety, morals and/or general welfare."

*5 (T 26} In Hill's opinion, there is no compellingreason to change the residential zoning pattern, butthat if a change were considered it would be logicalto develop single family cluster homes. There is noevidence that the current single-family residentialuse is unreasonable.

{9[271 The City argues that the current zoning clas-sification confines the genera] business activities toareas which are largely out of sight of the inhabited

Page 5

single-family and multi-family residential dwell-ings along Whitney Road, including the propertiesat issue. We recognize that preserving the acstheticsof a community is a legitimate government interestand may be considered when enacting zoning legis-lation. Haulson v. Albrecht (1984), 90 Ohio St.3d69, 734 N.E.2d 824, syllabus.

{9[ 28} Hill also testified that rezoning for commer-cial use would upset the existing balance betweenresidential and business use in the City. The 1996Strongsville Comprehensive Plan Business Supple-ment determined that there is already an excess of170 acres of land zoned for business use.

{T 29} The City offered evidence of the marketvalue of the ates as determined by the CuyahogaCounty Aud,^jfch demonstrated the value ofthe properhes;lrad coiisistzntly increased. The prop-erties, including the land and occupied dwellings,range in market value from $41,500 (for the onlyvacant wooded lot) to $215,600. The appellants donot cite any evidence that they have been unable tosell their homes for fair market value despite theirclaim.

{T 301 We find that- the appellants have failedtoprove that the City's zoning ordinance does not ad-vance the City's legitimate government interest inmaintaining the residential character of the proper-ties and the balance in the extended community.See Central Motors Corp. v. Ci1)^ of Pepper Pike(1995), 73 Ohio St.3d 581, 653 N.E.2d 639. Theevidence provided by the appellants does not over-conie the strong presumption that the zoning ordin-ance is constitutional and we do not substitute ourjudgment for that of the City's legislative functionwhere the appellants' constitutional guaranties havenot been violated.

(9[ 311 After a careful review, we find that therewas competent, credible evidence to support the tri-al court's judgment and conclude that the appel-lants' failed to demonstrate beyond a fair debatethat the City's residential zoning ordinance as ap-plied to the appellants was arbitrary or unreason-


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Not Reported in N.E.2dNot Reported in N.E.2d, 2002 WL 1986551 (Ohio App. 8 Dist.), 2002 -Ohio- 4434

(Cite as: 2002 WL 1986551 (Ohio App. 8 Dist.))

able and that it did not substantially relate to thehealth, safety and general welfare of the City ofStrongsville. Accordingly, the appellants' first as-signment of error is overruled.

{1 32) The appellants' second assignment of error

is as follows:

(133) "II. The trial court erred in determining thatthe City's rezoning referendum procedure is consti-

tutional."

Page 6

municipality may not pass a zoning ordinance thatcontains automatic referendum and ward veto pro-visions, since those provisions are in direct conflictwith R.C. 713.12 and 731.29."Rispo Realty & Dev.

Co. v. Parma, supra, at syllabus. The City ofStrongsville is a charter municipality and we findno conflict herein.

{9[ 37} Accordingly, the appellants' second assign-ment of error is overruled.

Judgment is affirmed.

[2] f9[ 34) The appellants challenge Article VIII,Section6, of the City's Charter as being unconstitu- It is ordered that appellees recover of appellants itstional as applied becausc it provides for a wardveto. Specifically, in order to change a propertyzoned for residential use to any other use, the refer-endum provision requires approval by a majorityvote in city-wide and a majority vote in the ward inwhic'h the property is situated. The appellants con-tend that this provision is in conflict with the gener-al laws of the State of Ohio because it invites an ar-bitrary and capricious usurpation of municipal au-thority by the electorate.

*6 {9l 35}The evidence reveals that the appellants'rezoniiig application on the November 1997 generalelection ballot was approved by a slight majority inthe city-wide electorate (6,474 votes to 6,124 votes)but was defeated by a slight majority of the votersin Ward 1 (1,807 votes to 1,356 votes). Those per-sons who are primarily affected by the rezoning ofthe property from residential use to commercial useare the voters who reside in Ward 1, not the city-wide electorate. A process which gives these voters

costs herein taxed.

The Court finds there were reasonable grounds forthis appeal.

It is ordered that a special mandate issue out of thisCourt directing the Common Pleas Court to canythis judgment into execution.

A certified copy of this entry shall constitute themandate pursuant to Rule 27 of the Rules of Appcl-late Procedure.

TIMOTHY E. McMONAGLE, A.J., and JAMES D.SWEENEY, J., CONCUR.

Ohio App. 8 Dist.,2002.Bella Viosta Group, Inc. v. City of StrongsvilleNot Reported in N.E.2d, 2002 WL 1986551 (OhioApp. 8 Dist.), 2002 -Ohio- 4434

such deciding weight in regard to the rezoning of END OF DOCUMENTthe property is not unreasonable in and of itself.

{136) The appellants do not cite any legal author-ity upon which they base their challenge of theCity's referendum process. We are not presentedwith the same circumstances as in Rispo Readt\- &

Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 564N.E.2d 425, which concerned a noncharter muni-cipality's zoning ordinance that was found to be indirect conflict with a state statute. "A noncharter


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WestlavvNot Reported in N.E.2dNot Reported in N.E.2d, 2003 WL 22439748 (Ohio App. 9 Dist.), 2003 -Ohio- 5779

(Cite as: 2003 WL 22439748 (Ohio App. 9 Dist.))

cCHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

LEGAL AUTHORITY.

Court of Appeals of Ohio, Ninth District, SummitCounty.

STATE of Ohio, ex rel. Marcella GAYDOSH, Ap-pellee,

V.CITY OF TWINSBURG INSURANCE COM-

PANY, Appellant.No. 21491.

Decided Oct. 29, 2003.

Citizen filed a relator's complaint for declaratoryrelief and injunctive relief against city and attorneygeneral, seeking a judgment declaring ordinanceknown as the Unified Development Code null andvoid. The Court of Common Pleas, Summit County,No. CV 01-10-4962, granted summary judgment tocitizen. City appealed. The Court of Appeals, Carr,P.J., held that city could not lawfully enforce zon-ing change in wards that voted in favor of changeand not in wards that voted against change.

Affirmed.

West Headnotes

Zoning and Planning 414 C^198

414 Zoning and Planning414111 Modification or Amendment

414111(B) Manner of Modifying or Amending414k198 k. Number of Votes Required.

Most Cited CasesCity did not obtain a majority of its electorate as awhole and a majority vote of each of its five wardswhen zoning change was put on city ballot, as re-quired to pass a city-wide zoning change, and thuscity could not lawfully enforce zoning change in

Appeal from Judgment Entered in the Court ofCommon Pleas, County of Summit, Ohio, Case No.

Page 1

wards that voted in favor of change and not inwards that voted against change. Const. Art. 18, §7; R.C. § 713.06.

CV 01-10-4962.Charles K. Webster, AttorneyOH, for appellant.Warner Mendenhall, Attorneyfor appellee.

at Law, Twinsburg,

at Law, Akron, OH,

CARR, Presiding Judge.*1 {91 1} Appellant, City of Twinsburg ("the City"),appeals the decision of the Summit County Court ofCommonPleas, which granted summary judgmentin favor of appellee, Marcella Gaydosh. This Court

affirms.

I

{1 2} This case involves a dispute over which zon-ing code the City should be enforcing in its muni-cipality. The two zoning codes at issue are Orditt-ance 87-1989 ("1989 Zoning Code"), and Ordin-ance 68-2000, otherwise known as the Unified De-velopment Code ("UDC"). The 1989 Zoning Codewas approved by Twinsburg's electorate on Novem-ber 7, 1989. In 2000, the City, with the help of itsplanning commission, presented city council withamended legislation to enact the UDC. City councilapproved the UDC during its July 11, 2000 meetingand enacted Resolution 109-2000, which allowedthe UDC to be submitted to Twinsburg's electorateon the November 7, 2000 ballot. The UDC was ap-proved by a majority of those persons voting inwards three, four, and five. However, the UDC didnot receive a majority vote in wards one and two.The City then adopted the UDC in wards three,four, and five, and left the 1989 Zoning Code in ef-fect in the other two wards.

(1 31 Appellee filed a retator's complaint for de-claratory relief and injunctive relief on October 12,

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Not Reported in N.E.2dNot Reported in N.E.2d, 2003 WL 22439748 (Ohio App- 9 Dist.), 2003 -Ohio- 5779(Cite as: 2003 WL 22439748 (Ohio App. 9 Dist.))

2001, naming the City and Attorney General BettyMontgomery as respondents. Claims against the At-torney General were later dismissed. In her com-plaint, Appellee sought a judgment declaring theUDC null and void as unlawful, unconstitutional,and in violation of the City's charter. Appellee alsosought injunctive relief to halt the City's enforce-ment of the UDC, attorney's fees, and any other re-lief the trial court deemed just.

{9[ 4) The City filed its answer ou November 8,2001. Appellee then filed a motion for summaryjudgment and the City responded by filing its ownmotion for summary judgment. Appellee filed areply to the City's summary judgment motion andthe case was set for a pretrial conference. On March6, 2003, the trial court issued an order grantingsummary judgment for appellee and denying thesame for the City.

[9[ 5) The City timely appealed, setting forth twoassignments of error for review. This Court will ad-dress both assignments of error together for ease ofdiscussion.

II.

FIRST ASSIGNMENT OF ERROR

"THE COURT BELOW ERRED IN ITS DE-TERMINATION THAT THE CITY OF TWINS-BURG IS ENFORCING TWO ZONING CODES °

SECOND ASSIGNMENT OF ERROR

"THE COURT BELOW ERRED IN ITS DE-TERMINATION THAT LEGISLATION AMFND-ING THE ZONING CODE OF THE CITY OFTWINSBURG WAS NOT PROPERLY EN-ACTED."(q[ 6) In its two assignments of error, the City ar-gues the trial court erred in granting summary judament to appellee. Specifically, the City argues thetrial court erred in its determinations that the City is

Page 2

enforcing two zoning codes and the legislationamending the zoning code of the City was not prop-erly enacted. This Court disagrees.

*2 117) Pursuant to Civ.R. 56(C), it is appropriatefor a trial court to grant summary judgment when:

"(1) No genuine issue as to any material fact re-mains to be litigated; (2) the moving party is en-titled to judgment as a matter of law; and (3) it ap-pears from the evidence that reasonable minds cancome to but one conclusion, and viewing such evid-ence most strongly in favor of the party againstwhom the motion for summary judgment is made,that conclusion is adverse to that party" Tenaple v.Wean United, Inc. (1977), 50 Ohio St.2d 317, 327,364 N.E.2d 267.

To succeed on a summary judgment motion, themovarit "bears the initial burden of demonstratingthat there are no genuine issues of material factconcerning an essential element of the opponent'scase."(Emphasis sic.) Dresher v. Burt (1996), 75Ohio St.3d 280, 292, 662 N.E.2d 264. If the movantsatisfies this burden, the non-moving party "mustset forth specific facts showing that there is a genu-ine issue for trial." Id. at 293, 662 N.E.2d 264,quoting Civ.R. 56(E).

{q[ 8) An appellate court will review summaryjudgment de novo. Helton v. Scioto Ctv. Bd. ofComsnrs. (1997), 123 Ohio App.3d 158, 162, 703N.E.2d 841. Like the trial court, the appellate courtmust view the facts in the light most favorable tothe nonmoving party. Viock v. Stowe-WoodwardCo. (1983), 13 Ohio App.3d 7, 12, 467 N.E.2d1378. Any doubt must be resolved in favor of thenonmoving party. Id.

[T 9) In her motion for summary judgment, ap-pellee argued that the City is a chartered municipal-ity and the electorate, via the City's charter, havereserved to themselves the power to vote on zoningchanges submitted by city council. Appellee furtherargued that, when the UDC was put on the Novem-ber 2000 ballot, it constituted a city-wide zoning


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change which triggered the charter's procedura] re-quirement that the City must obtain a majority voteof the electorate as a whole and a majority vote ofeach of the five wards. Appellee argued that, be-cause the UDC did not receive the majority votc inwards one and two, the City failed to obtain the ne-cessary referendum approval to institute the UDC.

{9[ l01 Appellee then argued that, although theUDC failed on the ballot, the City itnproperly en-acted the UDC and enforced it in wards three, four,and five while it continued to enforce the 1989Zoning Code in wards one and two. Appellee alsoargued that R.C. 713.06, Section 7A.01 of theCity's charter, and the 1989 Zoning Code all clearlyrequire the City to enforce a single zoning code;therefore, the City was illegally lmplementing twozoning codes.

{9[ 11) In its motion for sununary judgment,City did not dispute that it is a chartered munieipZ7,ity. The City also did not dispute that it enacted theUDC in only wards three, four, and five because theUDC did not pass in wards one and two. However,the City argued it was not enforcing two zoningcodes. It claimed that Section 7A.01 of its charterrequires a majority vote both city-wide and withineach ward only when a provision changes the use orclassification of the zoning in all wards. The Cityproceeded to argue that the UDC was not a city-wide zoning change. Instead, it argued that certainprovisions of the UDC did not entail changes in useor classification and that the City implementedthose provisions city-wide; other provisions of theUDC which did entail changes in use or classifica-tion were only implemented in wards three, four,and five. The City argued that the UDC was validlegislation legally adopted by the city council r'Ni

FNI. This Court notes that, within its brief,the City cites Ferrito v. Twinsburg, 9thDist. No. 21210, 2003-Ohio-1302, to sup-port its arguments that it was not enforcingtwo zoning codes and the UDC was prop-erly enacted. However, Ferrito is not ap-plicable in the City's case and res judicata

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is not an issue herein. The Ferrito case in-volved a voter's unsuccessful efforts tokeep the UDC off the November 2000 bal-lot and this Court dismissed her appeal asmoot because the election had past and theelectorate had already voted on the issue.The instant appeal involves issues concern-ing the outcome of the November 2000election and the legality of enforcing theUDC.

*3 f9l 12} In her response to the City's motion, ap-pellee stated the City admitted it is implementingthe UDC in wards three, four,and five, while it isnot implementing the UDC in wards one and two.Appellee argued these admissions supported hersummary judgment motion as to the undisputedfacts, that the City is enforcing two zoning codes,Afie_ 19.89 Zoning Code and the UDC, despite the'^i.'t_the UDC failed to pass in wards one and two.^ Appellee argued the UDC. issue failed on the ballot

_ _M-heFause the charter requirements for passage wereno[ met; therefore the City violated R.C. 713.06,

Section 7A.01 of the City's charter, and the 1989Zoning Code by enacting the UDC.

{9[ 13}R.C. 713.06 governs the division of a muni-cipal corporation into zones, and provides, in relev-ant part:

"The planning commission of any municipal cor-poration may frame and adopt a plan. for dividingthe municipal corporation or any portion thereof in-to zones or districts{.}" (Emphasis added.)

Furthermore, the Ohio Constitution authorizes acity to draft and adopt a charter on its own initiat-ive. Section 7, Article XVIII, Ohio Constitution.The City is a chartered municipality. Section 7A.01 of the City's charter governs the procedure re-quired before the 1989 Zoning Code could beamended or replaced and provides, in relevant part:"Any change in zoning classifications or districts,or in the uses permitted in any zoning use classific-ations or districts within the City of Twinsburgrnust first be submitted to the Planning Commis-

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sion, for consideration and report. In the event the law, this Court finds that summary judgment wasCity Council should approve any of thc preceding properly granted in favor of appellee. Con-requested changes, upon the report of the Planning sequently, the City's two assignments of error areCommission, it shall not be approved or passed by overruled.the declaration of an emergency, and it shall not beeffective, hut it shall be mandatory that the same beapproved by a majority vote of all votes cast of the III.qualified electors of the City of Twinsburg and ofeach ward in which the property so changed is loc- [9[ 17) Accordingly, the judgment of the Summit

ated at the next scheduled election."(Emphasis ad- County Court of Common Pleas is affirmed.

ded.).Judgment affirmed

{9[ 14) Section 7A.01 of the City's charter speoific-ally requires a majority vote from each of the five WHITMORE, J., and BATCHELDER, J., concur,wards before any change in zoning use or classific-ation can become effective in the City. Absent a Ohio App. 9 Dist.,2003.finding that the City's charter is unconstitutional or State ex rel. Gaydosh v. City of Twinsburg Ins. Co.invalid, any actions effecting a change in zoning Not Reported in N.E.2d, 2003 WL 22439748 (Ohiouse or classification must follow Section 7A.01 of App. 9 Dist.), 2003 -Ohio- 5779

its charter. See Bauman v. State (1930). 122 OhioSt. 269, l71' N.E. 336. It is clear to this Court that END OF DOCUMENTthe UDC, constitutes a city-wide zoning change be-cause it was designed to modify and modernize the1989 Zoning Code as it pertains to zoning classific-ation, subdivision development and other regulationof land use within the City. Moreover, it is undis-puted that both wards one and two did not producea majority vote with regard to thc UDC. Therefore,according to the City's own charter, the UDC failedto pass because it did not receive a majority voteinall five wards. As a result, the UDC is not effective.

*4 {q[ 15} Nonetheless, the City enacted the UDC.In fact, it is undisputed that the City interpreted theoutcome of the vote to mean that the UDC passedand becatne effective in wards three, four, and five.Subsequently, the City implemented the UDC inwards three, four, and five while continuing to im-plement the 1989 Zoning Code in only wards oneand two. Consequently, this Court finds that nogenuine issue remained with regard to the facts thatthe UDC was not propcrly enacted and the City en-forced two different zoning codes among the fivecity wards.

{9[ 16) In light of the above facts and the applicable


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WeStlaw...Not Reported in N.E.2dNot Reported in N.E.2d, 1992 WL 394908 (Ohio App. 10 Dist.)(Cite as: 1992 WL 394908 (Ohio App. 10 Dist.))

Only the Westlaw citation is currently available.


LEGAL AUTHORITY.

Court of Appeals of Ohio, Tenth District, FranklinCounty.

T'homas B. KINNINGER et al., Plaintiffs-Appel-lants,

V.Roger W. TRACY, Ohio Tax Commissioner et al.,

Defendants-Appellees.No. 92AP-1143.

.Dec.31,1992

Appeal from the Franklih County Court of Com-mtin Pleas.

Donald°J. McTigue, for appellants.Lee Fisher, Atty. Gen., and Richard C. Farrin, forappellee Roger W. Tracy.Taft, Stetinius & Hollister, and Thoinas R. Schtick;Taft, Stetinius & Hollister, and Lawrence D. Walk-er, for appellee Shelby County Bd. of County Com-missioners.

OPINION

McCORMAC, Judge.*1 Plaintiffs-appellants, Thomas B. Kinninger,James Freytag and Edgar Teets, appeal the dis-missal of their complaint for lack of subject matterjurisdiction by the Franklin County Court of Com-mon Pleas. By their complaint, appellants sought tooverturn an allegedly illegal tax issue passed by theelectorate'of Shelby County to fund a bond levy re-lated to the construction of a new jail. The trialcourt found that an election contest, pursuant toR.C. 3515,08 et seq., was appellants' exclusive rem-edy and, hence, granted the motion to dismiss of

Page 1

appellees, Shelby County Board of Commissioners,individual commissioners Zimpher, Meyer andLeighty, and Ohio Tax Commissioner Roger W.Tracy.

Appellants raise the following assignments of error:

"ASSIGNMEIVT OF ERROR NO. I

"R,C. 3515.08 DOES NOT PRECLUDE THE IS-SUANCE OF AN INJUNCTION ENJOININGTHE COLLECTION OF A COUNTY SALESAND USE TAX WHICH WAS NOT SUBMIT-TED TO OR APPROVED BY THE VOTERS OFTHE COUNTY AS REQUIRED BY R.C.5739.026 AND R.C.5741.023.

"ASSIGNMENT OF ERROR NO.,II 1."R.C. 5703.38 DOES NOT BAR INJUNCTIVERELIEF AGAINST THE COLLECTION OF ANILLEGAL SALES AND USE TAX.

"ASSIGNMENT OF ERROR NO. III

"R.C. 5703.38 DOES NOT BAR THE GRANT-ING OF A DECLARATORY JUDGMENTAGAINST THE COLLECTION OF AN ILLEG-AL SALES AND USE TAX AND ORDERINGA REFUND OF THE TAXES PAID."

At issue in appellants' first assignment of error isthe propriety of ballot language contained in Issue 1of the special election held May 7, 1991, in ShelbyCounty. The ballot stated:

"By resolution No. 91-65, passed February 14,1991, the Board of County Commissioners ofShelby County proposed an additional one-half ofotte percent (.5%) increase in the sales and usetax (excluding certain watercraft, outboard mo-tors and motor vehicles) for the purpose ofproviding additional revenue for the ACQUISI-TION, CONSTRUCTION AND EQUIPPING OFA NEW COUNTY JAIL AND SHERIFF'S OF-

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FICES, effective not earlier than August 1, 1991,for a period of twelve (12) years.

"Shall the resolution of the Board of CountyCommissioners of Shelby County proposing aone-half of one percent (0.5%) increase in thesales and use tax be approved?"

It is uncontested that R.C. 5741.023(A)(1) requiresthat a use tax on motor vehicles, watercraft and out-board motors must accompany any county sales taximposed pursuant to R.C. 5739.026. The partiesfurther agree that the parentheticallanguage in-cluded in thc descriptive portion of the ballot by theShelby Couuty Board of Elections is incorrect. Thelanguage included within the parenthesis is actuallywhat should be excluded from the sales tax, not theuse tax. The question presented is one of remedy.Appellees argue, and the trial court agreed, that ap-pellants' exclusive remedy is an election contest un-der R.C. 3515.08. Conversely, appellants contendthat a direct attack on the validity of the tax is ap-propriate.

The Supreme Court has repeatedly held that anelection contest isthe exclusive remedy for the cor-rection of all errors, frauds and mistakes which mayoccur during an election. State ex rel. Daoust v.Srnith (1977), 52 Ohio St.2d 199; In re L-'lectian ofNovemher 6, 1990,for the Office of Atem-nev Gener-al of Ohio (1991), 62 Ohio St.3d 1. Generally, acertificate of election is not subject to collateral at-tack. State ex rel. Shriver v. Haves (1947), 148Ohio St. 681. The fifteen-day timc limit imposedby R.C. 3515.09 is jurisdictional. McCall v. Boardof Edn-(1959), 169 Ohio St. 50. Appellants cite noother irregularity in the procedures incident to thebond issuance other than the descriptive ballot lan-guage prepared by the Shelby County Board ofElections.

*2 Appellants cite a line of cases exemplified bySchrzoei-r v. Miller, Clerk (1965), 2 Ohio St.2d 121,for the proposition that the language involved nulli-fies a necessary precondition to the issuance of val-id bonds and, henec, that a collateral attack is prop-

Page 2

er. We are unpersuaded by appellants' argument.

Each of the cases cited by appellants involve thetechnical requirements of Ohio's version of the Uni-form Bond Act. In this case, what is being attackedis a mistake in the language used to describe thequestion presented by Issue I of the spccial elec-tion. Had the parenthetical language been insertedafter sales tax and not after use tax, we would notbe here today. There is nothing in the record show-ing any deviation by appellees from the fornial re-quirements necessary to issue valid public obliga-tion bonds.

The question presented is one of incorrect ballotlanguage prepared by the board of elections. This isprecisely the type of issue to be raised in an elec-tion contest under R.C. 3515.08. The language canbest be read as a mistake and, therefore, fallssquarely within the ambit of Shriver.

Appellants' first assignment of error is overruled.

Appellants next argue that R.C. 5703.38 does notbar injunctive relief against the collection of thesubject tax. R.C. 5703.38 provides:

"No injunction shall issue suspending or stayingany order, deterniination, or direction of the de-partment of taxation, or any action of the treas-urer of state or attorney general required by lawto be taken in pursuance of any such order, de-termination, or direction. This section does notaffect any right or defense in any action to collectany tax or penalty."

The Ohio Supreme Court has stated repeatedly thatno injunction will lie effectively staying any order,determination, or direction of the tax commissioner.Torbet v. Kilgore (1966), 6 Ohio St.2d 42; Hakintr. Kosydar (1977), 49 Ohio St.2d 161. The Torbetcourt recognized the distinction between the court'sauthority under R.C. 2723.01 to stay the collectionor assessment of an illegal tax and the inability of acourt to render injunctive relief in violation of R.C.5703.38. No assessment has yet been made by the


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tax commissioner nor is the legality of the tax nowat issue, as explained in deciding the first assign-ment of error. Therefore, this action falls within theambit of R.C. 5703.38. The issue thcn becomeswhether the tax commissioner's notice to vendors,informing of the tax and the requirements imposedon them, is an order, determination, or direction ofthe tax commissioner.

R.C. 5739.13 requires that the tax comniissionergive written notice of any assessment tnade againstthe taxpayer. This notice has been held to he withinthe reach of R.C. 5703.38. Srnith v. Dept. of Taxa-tion (1975), 46 Ohio App.2d 132. The notice sent

Page 3

Appellants'third assignment of error is overruled.

Appellants' assignments of error are overruled, andthe judgment of the trial court is affirmed.

Judgment affirmed.

JOHN C. YOUNG, P.J., and PEGGY BRYANT, I.,concur.Ohio App. 10 Dist.,] 992.Kinninger v. TracyNot Reported in N.E.2d, 1992 WL 394908 (OhioApp. 10 Dist.)

to Shelby County vendors herein is simply a pre- END OF DOCUMENTcursor to any subsequent assessment. The noticedirects vendors to begin collecting the tax on a pre-scribed date, the amount to be collected and the re-quirements for reporting the collection. The taxcommissioner has directed the vendors to proceedin a certain manner.

^3 It is a standard principle of statutory construc-tion that words of ordinary usage must be giventheir ordinary meaning. R.C. 1.42. R.C. 5703.38speaks of a tax comtnissioner's direction, which iswhat was involved. Thus, appellants' action for in-junctive relief is barred by R.C. 5703.38.

Appellants'second assignment of error is overruled.

Lastly, appellants maintain that the trial court erredby failing to grant declaratory relief. Appellantsmaintain that declaratory relief exist independent ofinjunctive relief and, therefore, that R.C. 5703.38does not apply. Ultimately, appellants seek a de-claration that the Shelby County tax is illegal.

We have previously determined that the trial courtwas without subject matter jurisdiction to rule onappellants' collateral attack, as the proper remedywas an election challenge. By their declaratoryjudgment argument, appellants are attempting toachieve indirectly what they could not achieve dir-ectly. The exclusive remedy of an election contestalso bars relief by way of declaratory judgment.



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^,.Only the Westlaw citation is currently available.


LEGAL AUTHORITY.

Court of Appeals of Ohio, Eighth District,Cuyahoga County.

JAMES SHIPAN ContestorV.

ANDREW SLIVKA ContesteeNo. 44779.

44779January 22, 1982.

FINDINGS OF FACT, CONCLUSIONS OF LAWAND VERDICT

PER CURIAM*1 The previously entered Findings of Fact, Con-clusions of Law, and Verdict are amended by theattached revised form, nunc pro tu_ nc to correct

clerical errors.

DAY J. and JACKSON, J. CONCUR.

JAMES SHIPAN Contestor

v.

ANDREW SLIVKA Contestee

No.44779.

Court of Appeals of Ohio, Cuyahoga County.

January 15, 1982.

MARKUS, P.J.

Page 1

FINDINGS OF FACT CONCLUSIONS OF LAWAND VERDICT

In this election contest proceeding, the parties havestipulated that the Board of Elections counted theballots to conclude that Contestor and Contestee re-ceived an equal number of votes. The parties havefurther stipulated that the Board of Elections thenproceeded to resolve the election tie by lot with acoin toss, which caused the Board of Elections todeclare and certify that Contestee was the winner ofthe disputed election. While Contestor's Petitionmakes somewhat broader claims, Contestor's posi-tion at trial asserts three claimed irregularities inthe conduct of the election and the tabulation ofballots:

(A) One ballot cast in Garfield Heights Ward 7,Precinct G(Exhibit 11), was not counted for anycandidate in this disputed election, and Contestorclaims it should have been counted as a ballot castfor him.

(B) One absentee ballot cast in Garfield HeightsWard 3 (Exhibit 13), was counted as a ballot forContestec, and Contestor claims that it should nothave been counted as a ballot for any candidate inthe disputed election.

(C) One prospective voter, Diana Ulatowski, wasallegedly eligible to vote but was denied an oppor-tunity to do so, and Contestor claims her votewould have been cast for him.

Contestee denies eacb of those claimed irregularit-ies, and he also asserts that Contestor has waivedeach of thosc objections or is estopped to assertthem at this time.

FINDINGS OF FACT

After hearing all the testimony, reviewing all theexhibits, and considering the briefs and argument of

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Not Reported in N.E.2dNot Reported in N.E.2d, 1982 WL 2309 (Ohio App. 8 Dist.)(Cite as: 1982 WL 2309 (Ohio App. 8 I)ist.))

counsel, the court makes the following findings offact:

1. In the election of Judge of the Garfield HeightsMunicipal Court, for the term commencing January2, 1982, Contestor and Contestee were found tohave received an equal number of votcs by theCuyahoga County Board of Elections.

2. This court is unable to determine the voter'schoice among the candidates in the disputed elec-tion for the challenged ballot for Garfield HeightsWard 7, Precinct G (Exhibit 11). There is no reas-onable basis upon which that voter's preference canbe ascertained by examination of the ballot or sur-rounding circumstances. Any conclusion about thatvoter's intent involves conjecture, speculation, andguesswork. Contestor has failed to demonstrate bya preponderance of the evidence that the voter cast-ing that ballot intended to vote for Contestor.

3. The voter's choice for the challenged absenteeballot cast for Garfield Heights Ward 3 (Exhibit13),.was most probably to vote for Contestee in thedisputed election. The exhibits and the testimonydemonstrate that this ballot card was probablypunched on the chad for the number assigned by theaccompanying ballot to Contestee, but that punchdid not totally dislodge the chad from all fourcorners where it had been attached. Since this wasan absentee ballot, the somewhat more rigid ballotframe and card assembly were not available to thevotcr when the ballot card was punched. Althoughthis circumstance caused a "hanging chad," thevoter's preference is reasonably clear to have been avote for Contestee. Contestor has failed to demon-strate by a preponderance of the evidence that it isitnpossible to determine the voter's choice, or thatthe voter intended to vote for anyone other thanContestee.

*2 4. Diana Ulatowski was a duly qualified electorat the time of the disputed election, and she did goto her assigned polling place to cast a ballot on thatday. She was advised by the presiding judge at thatpolling place that she was not shown to be an eli-

Page 2

gible voter, and she did leave the voting place with-in approximately one half hour later without castinga ballot. When she came to vote that day, she didnot bring a voting registration card she had previ-ously received, and she chose not to retorn home toobtain that card as furtlter proof of her qualificationto vote. Efforts made to confirm or deny her statusas a qualified voter were undertaken but not com-pleted while she was at the polling place. The ac-tion by representatives of the Board of Elections indenying lter an opportunity to vote resulted from anadministrative or clerical error. Her inability to votedid not result from any fraud, corruption, abuse ofdiscretion, or clear disregard of applicable law.

5. Prior to the time when the official count wasmade for the ballots in the disputed election, Con-testor knew that Diana Ulatowski had been preven-ted from voting in that election and claimed to havebeen thereby prevented from voting for him. DianaUlatowski made some additional telephone effortsto inquire about the status of her voting registration.However, neither she nor Contestor advised theBoard of Elections that she claimed to have beenprevented from voting for Contestor, nor did eitherof them make any claim to the Board of Electionsthat the disputed election was irregularly conductedbecause she was denied an opportunity to vote, un-til after the official count had been completed andthe subsequent recount requested by Contestor hadalso been completed. During the time that Contest-or knew about the Ulatowski matter and refrainedfrom advising the Board of Elections about it, heknew that the Board believed that the election hadbeen conducted with regularity and was relying onthat belief in expending substantial time and fundsin accomplishing the official count and subsequentrecount. Further, during that same time interval,Contestor knew that Contestee and his campaignassistants were relying upon their belief that theelection had been conducted with regularity by ex-pending substantial time and effort in monitoringthe official count and subsequent recount.

6. At the time the Board conducted the official



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Page 3

count of the ballots for this election, Contestor waspresent together with his personal computer con-sultant. At the time of the recount conducted by theBoard at Contestor's request, Contestor was presenttogether with his legal counsel and approximately20 to 25 campaign assistants. At the time that theBoard considered all disputed ballots, including thechallenged ballots discussed in this trial, Contestorwas present with his legal counsel. Contestor madeno objection to the Board of Elections about anyprocedures used by it to count any ballots, to de-termine which ballots might involve questionablevoter intent, or to resolve any issues as to thevoter's intent, until after the Board had completedthe official count and the subsequent requested re-count. By his conduct during the count and recount,Contestor manifested an acquiescence in the pro-cedures used by the Board of Elections to accom-plish the ballot evaluation and tabulation.

*3 7. Contestor makes no claim that the coin tosswas an improper method of determining the elec-tion by lot, or that the coin toss was irregularly con-ducted, if Contestor and Contestee received thesame total number of votes in the disputed election.Thus, if the Board of Elections correctly countedand tabulated the total number of votes to show thata tie resulted between these two candidates, Con-testor acknowledges that Contestee was properlychosen by lot as the winner and duly elected.

8. Contestor has failed to demonstrate by a prepon-derance of the evidence any inaccuracy in the ballotevaluation or tabulation by the Board of Electionsin its final recount. That Board properly determinedon the basis of the evidence available to them thatthese two candidates received the same number ofvotes, and Contestor has failed to demonstrate by apreponderance of the evidence that the Board's con-clusion was incorrect.

There is no evidence that any action by the Boardof Elections or its personnel was arbitrary, capri-cious, corrupt, fraudulent, or an abuse of discretion.

CONCLUSIONS OF LAW

1. The Board of Elections is presumed to have ac-ted regularly and properly in evaluating and tabu-lating the ballots. Further, Contestor has failed toprove otherwise by a preponderance of the evid-ence. This court's independent evaluation of thechallenged ballots with the assistance of additionalexhibits and explanatory testimony confirms andcorroborafes the conclusions reached by the Boardof Elections.

2. The demonstrated interference with DianaUlatowski's ability to vote at that election is not asufficient basis to set aside that election. A randomclerical error which obstructs the ability of a singleelector to vote cannot invalidate an election inwhich more than 32,000 electors cast ballots. Ab-sent a showing that one or more electors was dis-franchised by fraud, corruption, or clear disregardof applicable law, the electoral process cannot beupset. In any major election for a large populationgroup, it is anticipatablc that some clerical confu-sion could temporarily obstruct one or more votersfromcasting ballots. Diana Ulatowski did not per-sist in her efforts to cast a ballot; rather, she aban-doned those efforts at least one hour before thepolling place closed, when the difficulty of demon-strating her voting qualifications became somewhatburdensome. There was no showing that she wasabsolutely barred from voting, or that she wouldhave been prevented from voting if she had re-turned home to retrieve the voting registration as-signment card she had left there.

3. Even if the Ulatowski situation constituted an ir-regularity in the conduct.of the election, Contestorwould not he permitted to rely upon it in this pro-ceeding. Contestor has waived any objection to theconduct of the election, insofar as it relates to Di-ana Ulatowski's attempt to vote. Further, Contestoris estopped to deny that the election was conductedregularly on the basis that Diana Ulatowski wasprevented from voting.

*4 4. Contestor has also waived any objection to

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the procedure by which the Board of Electionsevaluated and tabulated votes, and he is estopped todeny that the Board's evaluation and tabulationwere properly accomplished. Not only does theevidence affirmatively establish waiver and estop-pel by a prcponderance of the evidence, but Con-testor has failed to deny by pleading the allegationsto that effect in Contestee's answer. Revised Code3515.10 establishes the procedures for pleading inthis special statutory action. Unlike the Ohio CivilRules, this statute authorizes a Reply by the Con-testor to the Contestee's Answer, Unlike the OhioCivil Rules, this statutory procedure makes no pro-vision for an automatic denial by the Contestor foraffirmative defenses asserted in the Contestee's An-swer. Civ. R. 8(D). The statutory provisions estab-lishing this special proceeding for an election con-test were last codified by the Legislature in 1953.At that time, the Civil Rules were not in effect, andthe Legislature provided for code pleading in civilactions with Petitions, Answers, and Replies. Whenthe election contest statutes are read in ari materiawith the pleading rules applicable at the same time,we conclude that the legislature intended election

-?1•: „"-' contest pleadings to conform with then existentCivil Code pleadings. Under that procedure, thefailure to file a Reply denying allegations of an af-firmative defense in the Answer constitutes an ad-mission of that affirmative defense, as a matter oflaw.

VERDICT

The court renders its verdict for Contestee in thisaction.

DAY J. and JACKSON, J. CONCUR.

JUDGMENT

Judgment is entered in this election contest actionfor Contestee, and this court declares that AndrewSlivka was duly elected as judge of the GarfieldHeights Municipal Court for the term commencingJanuary 2, 1982.


DAY J. and JACKSON , J. CONCUR.

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Ohio App., 1982.Shipan v. SlivkaNot Reported in N.E.2d, 1982 WL 2309 (Ohio App.8 Dist.)

END OF DOCUMENT

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