Posted by: Patricia Salkin | February 21, 2008

OH Supreme Court Finds Bd. of Elections Abused Discretion by Placing Zoning Referendum on Ballot

The Ohio Supreme Court determined that because the required statutory procedure was not followed for the placement of a zoning referendum on the ballot, the Board of Elections abused its discretion when it placed the initiative on the ballot for March 2008, and the Court granted a writ of prohibition to remove it from the ballot.  

Following a controversial amendment to the zoning resolution establishing guidelines for the siting of wind turbine generator facilities and anemometer towers in the township, a group of citizens opposed to the amendment circulated a petition to place a zoning referendum on the resolution at the March 2008 primary election.  The State statute requires that a petition be filed with the Board of Township Trustees within 30 days after the adoption of the amendment.  The amendment was adopted on September 19, 2007 and petitioners chose to deliver the petition to the private residence of one member of the Board of Trustees, who had also signed the petition. It was delivered on October 14, 2007.  The petition had a blank line for the township fiscal officer to note when the petition was filed, but the petition was not filed with him nor was it otherwise physically presented to or filed with the Board of Trustees.  The Board member kept the petition at his house until legal counsel advised him to file it with the Board of Elections, which he did on October 26, 2007.  The Board of Trustees never authorized the delivery of the petition to the Board of Elections, nor did they ever review or certify the petition at any public meeting.  

A group of Relators filed a written protest with the Board of Elections against the referendum petition in December 2007, following their request under the Freedom of Information Law for copies of all documents from the Board of Trustees, and following retention of legal counsel. Relators claimed that the petition was never filed with the Board of Trustees as required by State law, now was it timely reviewed and certified as also required under State law. In January 2008 the Board of Elections held a hearing and denied the protest and certified the referendum to the ballot for March 4, 2008.  

On expedited appeal to the Ohio Supreme Court, the Court found that under the circumstances, the Relators timely filed their protest.  The Court also found that the Relators were entitled to a writ of prohibition to prevent the board of elections from placing the referendum on the March 4, 2008 ballot.  In concluding that the Board of Elections abused its authority, the Court noted that while there was no evidence of fraud or corruption, the Board disregarded the applicable law which required that the petition be filed with the board of township trustees.   The Court noted that the petition was not submitted to a township fiscal officers or other record custodian and was not placed into the official township record when it was delivered to the personal residence of one board member. Further, the line for signature of the township officer was left blank.  State statute requires that the petition be filed with “the secretary of the board of elections or with any other public office,” and a personal residence, said the Court, is not a public office. The Court concluded that because the petition was never filed with the board of township trustees, the referendum petition violated State law. Furthermore, the Court determined that the board of township trustees never certified to the Board of Elections that the petition was valid on its face, as required by State law.  “A single member of the board of township trustees does not constitute a board…and cannot act as the board.”  

The Court also noted that the filing at a personal residence with a trustee who had signed the petition and thus had an interest in the matter should not have been condoned by the Board of Elections. The Court said that “As long as a petition is located in a private residence, the board’s construction would deprive electors and other interested persons of an initial opportunity to inspect the petition to determine whether it complies with applicable legal requirements.”   

State Ex. Rel Stoll v. Logan County, 2008 WL 345506 (2/5/2008).   

The opinion can also be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-333.pdf


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