OPINIONS OF THE SUPREME COURT OF OHIO 

 

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The State ex rel. Spadafora et al. v. Toledo City Council. 

[Cite as State ex rel. Spadafora v. Toledo City Council 

(1994), Ohio St.3d .] 

Mandamus to compel placement of proposed charter amendment 

 for city of Toledo on ballot -- Writ denied, when. 

 (No. 94-2210 -- Submitted October 25, 1994 -- Decided 

December 30, 1994.) 

 In Mandamus. 

 In May 1993, a group named the Toledo Downtown Rooters 

("TDR") was created to oppose plans to locate a branch of the 

Center of Science and Industry ("COSI") in a vacant facility in 

downtown Toledo known as the Portside Festival Marketplace 

("Portside"). TDR initiated a petition drive to place a 

proposed charter amendment on the ballot for the city of 

Toledo. The proposed amendment would require the Portside 

property to be used solely and exclusively as a "Festival 

Marketplace" or as a "first-class commercial or retail use," as 

defined in then-existing deeds. The practical effect of the 

amendment would be to prohibit the location of the COSI branch 

in Portside. The part-petitions contained a notarized "OATH OF 

CIRCULATOR" which stated that the "circulator has received no 

money or benefit or promise for obtaining these signatures." 

 The head of TDR, Betty Mauk, agreed to provide expense 

money to William Baker in the amount of $2 per completed 

part-petition that he circulated. Baker had Antonio Stewart 

circulate some petitions for which Baker promised to pay him 

the $2 Baker would receive for each completed part-petition. 

On May 18, 1994, Baker signed a note agreeing to repay Mauk the 

expense money, i.e., $400, he had received for the completed 

part-petitions he had circulated. On June 17, 1994, a 

quitclaim deed from the Maumee Valley Community Urban 

Development Corporation released all conditions and 

restrictions on the use of the Portside property, including the 

restrictions quoted in the text of the part-petitions being 
circulated. 

 On June 20 and July 15, 1994, a petition and supplement 

thereto proposing the charter amendment which contained a total 

of 19,694 signatures were filed with the clerk of respondent, 

Toledo City Council. The petition was forwarded to the Lucas 

County Board of Elections ("board"), which determined that it 

contained 10,481 valid signatures. On July 25, 1994, the clerk 

of council certified to council that the petition contained 

10,481 valid signatures. A total of 9,520 signatures was 

needed for submission of the proposed charter amendment to the 

electorate. 

 The Director of Law (and the Acting Director of Law) for 

the city of Toledo sent letters to the board protesting the 

petition. On July 26 and August 9, 1994, council held regular 

meetings but took no action on the petition. At its regular 

meeting of August 23, 1994, council enacted an emergency 

ordinance referring the petition to the board for review of the 

law director's objections. By letter dated August 24, 1994 to 

the board, the law director reiterated and supplemented his 

objections to the petition. 

 The board, after conducting evidentiary hearings, decided 

on September 2, 1994 that it lacked authority to determine the 

validity and sufficiency of the charter amendment petitions. 

Nevertheless, the board issued a report to council, detailing 

its findings regarding each of the law director's objections. 

The board determined that Baker had been compensated for 

circulating part-petitions and that those petitions contained 

1,450 valid signatures. The board did not determine if the 

part-petitions were invalid because of Baker's compensation but 

did decide that it would not refer him for criminal prosecution 

since Baker had requested TDR not to file these 

part-petitions. The board determined that all of the law 

director's other objections to the petition were meritless. 

 On September 6, 1994, council passed an ordinance in which 

it determined that the proposed charter amendment would not be 

submitted to the electors because the petition was 

"insufficient and/or invalid in some or all of the following 

alternative respects: 

 "(a) The Law Department opinion, as supported by the 

findings and report of the Board of Elections, is that the oath 

of certain circulators (Baker and Stewart) on the original 

petitions was false, in that they received compensation for 

their services as circulator[s], which was contrary to their 

oath and prohibited by Ohio Revised Code Section 3519.06(D), 

thus invalidating approximately 1,600 signatures (Baker-1450, 

Stewart-150) of 10,481 filed on June 20, 1994. 

 "(b) The Law Department opinion, which is not shared by 

the Board of Elections, is that the content, purport and effect 

of the petition, which refers to deed restrictions on the 

Portside property, were false and invalid after the June 16, 

1994 closing with the State of Ohio for COSI, and the 

acceptance of deeds releasing said restrictions, the execution 

of contracts and recording of documents; and the acts of 

knowingly circulating such false petitions after June 16, 1994 

constituted continuing misrepresentations prohibited by Ohio 

Revised Code Sections 3599.14, 3599.36 and 731.36(A), thus 
invalidating approximately 1,319 signatures obtained after said 

date and filed on June 20, 1994 and July 15, 1994." 

 Toledo City Council thus concluded that 2,919 of the 

10,481 previously certified signatures were invalid, leaving a 

remainder of 7,562 valid signatures, less than the 9,520 

required to submit the proposed charter amendment to the 

electorate. 

 On October 17, 1994, almost six weeks following council's 

determination, relators, Anthony A. Spadafora and Portside and 

Renaissance Toledo Advocates ("PARTA"), initiated this action 

seeking a peremptory writ of mandamus to compel council to 

adopt an ordinance placing the proposed charter amendment on 

the November 8, 1994 ballot. Relators alternatively requested 

a peremptory writ compelling council to place the charter 

amendment on the ballot at the first available time following 

the November 8, 1994 ballot. Spadafora is an elector and 

taxpayer of the city of Toledo and a signator of the charter 

amendment petition. PARTA is a political action committee 

operated by Spadafora and others as an arm of the charter 

amendment proponents. On October 24, 1994, council filed an 

answer, affidavit, and exhibits. 

 

 Jeffrey M. Gamso, for relators. 

 Mark S. Schmollinger, Toledo Acting Director of Law, and 

Joseph Goldberg, Senior Attorney, for respondent. 

 

 Douglas, J. In the case at bar, certain circulators 

(including William Baker) signed an oath on petitions that they 

received no compensation for their services as petition 

circulators. William Baker himself, the Lucas County Board of 

Elections and the Toledo City Council all now agree that Baker 

was paid to circulate the petitions and the oath of the 

circulators was false. In fact, it was decided by the board of 

elections not to refer Baker for criminal prosecution only 

because Baker requested the TDR not to file the part-petitions 

in question. The petitions were, however, filed. 

 R.C. 3519.06(D) provides that "[n]o initiative or 

referendum part-petition is properly verified if it appears on 

the face thereof, or is made to appear by satisfactory 

evidence: * * * That the statement is false in any 

respect[.]" (Emphasis added.) Admittedly, R.C. Chapter 3519 

involves statewide initiative and referendum petitions. 

However, in State ex rel. Watkins v. Quirk (1978), 59 Ohio 

App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, the court held that 

a municipal clerk of council does have authority to invalidate 

all signatures affixed to referendum part-petitions where the 

part-petition on its face violates R.C. 3519.06(C). We agree 

that R.C. 3519.06 may be applied to a municipal referendum 

petition. Here, the board of elections rendered a report to 

the council which, in part, found (after a hearing) that Baker 

had in fact been compensated for circulating part-petitions. 

Certainly this is "satisfactory evidence" that on the face of 

the petition, there was a false statement. See R.C. 

3519.06(C). Thus, city council not only had the right to 

reject the ordinance placing the proposed charter amendment on 

the ballot -- it had the duty so to do. 
 Further, in State ex rel. Concerned Citizens for More 

Professional Govt. v. Zanesville City Council (1994), 70 Ohio 

St.3d 455, 457-458, 639 N.E.2d 421, 423, we said that "* * * it 

follows that the legislature [city council] need not make the 

submission [to the electors] unless satisfied of the 

sufficiency of the petitions and that all statutory 

requirements are fairly met." (Emphasis added.) See, also, 

State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993) 67 

Ohio St.3d 334, 335-336, 617 N.E.2d 1120, 1122. 

 Clearly, one of the requirements of R.C. 3519.06(D) is 

that an initiative and/or referendum petition speak, on its 

face, the truth. That statute was clearly violated here and, 

accordingly, Toledo City Council had the right (and duty) not 

to submit the question, based on these petitions, to the 

electors of Toledo. 

 In consideration of the foregoing, the writ is denied and 

the cause is dismissed. 

 Writ denied and 

 cause dismissed. 

 Resnick, F.E. Sweeney and Pfeifer, JJ., concur. 

 Moyer, C.J., A.W. Sweeney and Wright, JJ., concur 

separately. 

 Moyer, C.J., concurring in judgment only. I concur in 

judgment with the majority decision for the following reasons. 

In a very brief opinion, the majority casts aside 

well-established law relating to the authority of a city 

council of a charter city to place or not place on the ballot a 

charter amendment proposed by a requisite number of electors of 

the municipality. Whatever our views may be with respect to 

the desirability of locating a branch of the Center of Science 

and Industry in Portside, we should not cast aside 

well-established law and announce new law that will have a 

dramatic impact upon the will of the voters to place issues on 

the election ballots. 

 Section 7, Article XVIII of the Ohio Constitution 

authorizes municipal corporations to adopt and amend a homerule charter. Sections 8 and 9 of Article XVIII prescribe the 

procedures for adopting and amending a charter. State ex rel. 

Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 

334, 336, 617 N.E.2d 1120, 1122. On petition of ten percent of 

the electors, the legislative authority of the city must 

"forthwith" authorize by ordinance an election on the proposed 

charter amendment. In a unanimous opinion we recently followed 

well-established law and held that the authority of a city 

council in determining the sufficiency of a petition is limited 

to the form of the petition and does not include substantive 

matters. Morris v. Macedonia City Council (1994), 71 Ohio 

St.3d 52, 641 N.E.2d 1075; see State ex rel. Polcyn v. Burkhart 

(1973), 33 Ohio St.2d 7, 62 O.O.2d 202, 292 N.E.2d 883. In 

fact, there is no way to find the law in Morris inapplicable to 

this case. 

 The city council's authority to determine if all 

applicable statutory requirements have been met is not as broad 

as that of a board of elections or the Secretary of State. 

Council may not engage in judicial or quasi-judicial 

determinations of matters which are not apparent on the face of 
the petition or which require the aid of witnesses to 

determine. See Morris, supra, at 55, 641 N.E.2d at 1078; State 

ex rel. Citizens for a Better Portsmouth v. Sydnor (19791), 61 

Ohio St.3d 49, 52, 572 N.E.2d 649, 651; and Polcyn, supra, 33 

Ohio St.2d at 10-11, 62 O.O.2d at 203-204, 292 N.E.2d at 885. 

Without any analysis, the majority opinion cites a court of 

appeals' opinion, State ex rel. Watkins v. Quirk (1978), 59 

Ohio App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, to support 

its holding that R.C. 3519.06(C), which clearly applies to 

statewide initiative and referendum petitions, now applies to 

petitions filed to amend the charter of a municipality. That 

holding has far-reaching implications and should not be adopted 

in this case. 

 It is clear from the plain words of the Constitution, the 

cases applying the Constitution, and the statutes that the 

policy of the law is to favor the right of citizens to amend 

the charters of the municipalities in which they live. For 

that reason, the law does not, among other things, give a city 

council the right to act as a quasi-judicial body and 

substantively attack citizens' rights to place charter 

amendments on the ballot. The dilemma is that the law appears 

to provide no remedy to persons who seek to disqualify 

part-petitions on the basis that the circulators thereof made 

false representations. It would appear, however, that an 

action to enjoin a board of elections from placing an issue on 

the ballot would be available to an appropriate party. 

 Notwithstanding the foregoing analysis, I concur in the 

judgment of the majority. Council could have enacted an 

ordinance placing the proposed charter amendment on the 

November ballot, but refused to do so based upon alleged 

defects which it was not authorized to consider. Had relators 

filed their mandamus action timely, placement of the issue on 

the November 8 ballot would have been warranted. However, 

council argues that relators did not file this mandamus action 

until forty-one days following its decision regarding the 

sufficiency of the petition. In other cases, we have compelled 

placement of a charter issue on the ballot for the next 

regularly scheduled election where relators initiated mandamus 

actions within ten days of either council's refusal or the 

constitutional deadline to enact an enabling ordinance. See, 

e.g., State ex rel. Jurcisin v. Cotner (1984), 10 Ohio St.3d 

171, 10 OBR 503, 462 N.E.2d 381; State ex rel. Concerned 

Citizens for More Professional Govt. v. Zanesville City Council 

(1994), 70 Ohio St.3d 455, 639 N.E.2d 421; Sydnor; and Morris, 

supra. 

 Diligence and promptness are required of those seeking to 

affect the outcome of an election. See State ex rel. White v. 

Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 49, 

600 N.E.2d 656, 659. The failure of relators to act promptly 

in this case made it virtually impossible to give electors 

sufficient notice of the proposed charter amendment in time for 

the November 8 election. See Sections 8 and 9, Article XVIII, 

Ohio Constitution, and R.C. 731.211. In fact, relators 

themselves complained that "if the proposed amendment gets on 

the November 8, 1994, ballot, its advocates will have precious 

little time to campaign for its passage." For that reason, we 
refused relators' request for a writ of mandamus. 

 Relators alternatively request that we issue an order that 

would place the issue on a subsequent special election ballot 

within sixty and one hundred twenty days after the passage of 

an enabling ordinance by council. Such special election would 

be held at considerable cost, a cost that need not be borne had 

relators acted in sufficient time to place the issue on the 

November 8 ballot. Considering relators' considerable delay in 

bringing this action, I would not issue an order requiring a 

special election. 

 For the foregoing reasons, I concur only in the judgment 

of the majority opinion. 

 A.W. Sweeney and Wright, JJ., concur in the foregoing 

concurring opinion.