OH Supreme Court Holds City Attorney Abused His Discretion in Determining the Petitioners’ Referendum Petition for Approval of a Zoning Ordinance was Insufficient 

This post was authored by Matthew Loescher, Esq,

Relators, Lana Pennington, Holly Pennington, Cynthia McIntire, Lisa Cotterman, and Anna Miller, the five members of a petition committee, sought a writ of mandamus ordering respondent Whitehall City Attorney Michael T. Bivens or respondent Whitehall City Council to certify the sufficiency of a referendum petition for the rejection or approval of a zoning ordinance in the city of Whitehall. The petitioners also sought to compel the city council to submit the petition to Whitehall’s electors at the November 2, 2021 general election.

The court first noted that Section 14 of the charter states that “ordinances and resolutions adopted by Council shall be subject to referendum to the extent and in the manner provided in the Charter.” This language makes the default procedures established in R.C. 731.28 through 731.41 inapplicable to the city of Whitehall, because only the charter provides the manner for circulating referendum petitions. Furthermore, the charter does not impose any requirement to submit to the city auditor the ordinance that the petitioner sought to refer to the people, but instead the process in the charter provides for referendum petitions to be filed with the city attorney after they have been circulated. Thus, the court found that Bivens abused his discretion in determining that the petitioners’ referendum petition was insufficient because they had not complied with R.C. 731.32.

Respondents next contended that the court should deny the writ based on the doctrine of laches, criticizing the petitioners’ 21-day delay in bringing this mandamus action. Since there was time to decide this case on the merits without impeding the Franklin County Board of Elections in its duty to prepare and mail absentee ballots, the purpose of S.Ct.Prac.R. 12.08 “to give the Supreme Court adequate time for full consideration of the case” was found to have been satisfied, notwithstanding any delay in the filing of the action. Accordingly, the court granted a writ of mandamus to compel Bivens to certify forthwith the sufficiency of the petition to the clerk of the city council so that council may refer the zoning amendment to the electors at the November 2, 2021 general election.

Pennington v Bivens, 2021 WL 4145035 (OH 9/13/2021)