[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Luonuansuu v. King , Slip Opinion No. 2020-Ohio-4286.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -4286
T HE S TATE EX REL
. L UONUANSUU ET AL ., v . K ING , C LERK , ET AL
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Luonuansuu v. King , Slip Opinion No. 2020-Ohio-4286.] Elections—Mandamus—Writ of mandamus sought to compel board of elections to place referenda on four local ordinances on the November 2020 ballot— Relators failed to present sufficient evidence to establish their right to extraordinary relief—Writ denied. (No. 2020-0952—Submitted August 26, 2020—Decided September 2, 2 020.)
I N M ANDAMUS

.

________________ Per Curiam. {¶ 1} In this expedited election case, relators, James Luonuansuu and Patrick Layshock, seek a writ of mandamus to compel the placeme nt of four referendum petitions on the Nove mber 2020 ballot. The complain t names as respondents Kathleen King, clerk of Newton Falls, and the Trumb ull County BoardS UPREME C OURT OF O HIO

2 of Elections and board members K athi Creed, Ronald Knight, and Diana Marchese (collectively, “the board”). {¶ 2} For the reasons set forth below , we deny the writ. Further, gi ven this disposition, we deny as moot Kin g’s motion to strike relators’ second reply brief.
I. BACKGROUND A. The referendum process {¶ 3} Article II, Section 1f of the Ohio Constitution provides, “The initiative and referendum powers are hereby reserved to the peo ple of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.” Section 2 of the Newton Falls Charter preserves for its citizens the right of referendum “upo n ordinances and action taken by Council as prescribed in the Constitution of th e State of Ohio and as set forth in the general laws of the State of Ohio.” Under the general law of the state, “any ordinance * * * passed by the legislative authority of a municipal corporation shall be subject t o the referendum,” R.C. 731.29, w ith some relevant exceptions discussed below. {¶ 4} The referendum process begins with the submission of a petition , signed by a sufficient number of electors, to the village clerk or city auditor within 30 days after the ordinance is passed. Id . The clerk must hold the petition for ten days and then transmit it to the county board of elections, alo ng with a certified copy of the ordinance or measure in question. Id . Then, within ten days, the board of elections must examine all signatures on the petition and re turn the petition to the clerk with a statement attesting to the number of valid sig natures on the petition.
Id . Then, after the clerk certifies “the sufficiency and validit y of the petition” to the board of elections, the board of elections must submit the ordinance to the voters for approval or rejection at the next general election occurrin g at least 90 days after
the clerk’s certification. Id.January Term, 2020

3 {¶ 5} There are two relevant exceptions to the right of referendum. First, emergency ordinances “necessary for the immediate preservation of the public peace, health, or safety” are not subject to referendum and “sh all go into immediate effect.” R.C. 731.30. And second, when a municipal legislativ e authority “is required to pass more than one o rdinance * * * to make and pay for any public improvement,” only the first or dinance is subject to referendum

. Id . The subsequent ordinances, which ar e not subject to referendum, are referred to as
“administrative” measures. See State ex rel. Oberlin Citi zens for Responsible Dev.
v. Talarico , 106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, ¶ 22-23, 31.
B. The evidence in the record 1. The meter ordinances (Ordinances 2020-10 and 2020-26) {¶ 6} On June 1, 2020, the Newton Falls City Council 1 enacted Ordinance 2020-10, which authorized the city manager to enter into a cont ract with Gardiner Service Company, L.L.C., for an “Automated Meter Implementation ” project (“the first meter ordinance”). On J une 29, 2020, King received a pet ition for a
referendum on the first meter or dinance. After holding the pet ition for ten days, she delivered it to the Trumbull County Board of Elections for signature
verification. The board of elec tions verified the signatures a nd King retrieved the petition on July 17. {¶ 7} In the meantime, on July 6, before the city manager executed th e contract authorized by the firs t meter ordinance, the council e nacted Ordinance 2020-26, captioned “An Ordinance Repealing Ordinance 2020-10 an d Enacting Ordinance 2020-26 Authorizing the City Manager to Enter Into an d Execute a Contract for an AMI Implementa tion Project with Gardiner Servic e Company,

1. Although Newton Falls has a number of attributes of a “city ,” including that it is governed by a city council and has a city manager, it is technically a villag e based on its population following the 2010 federal census. See State ex rel. Lange v. King , 144 Ohio St.3d 349, 2015-Ohio-3440, 43 N.E.3d 409, ¶ 8.S UPREME C OURT OF O HIO

4 [L.L.C.], and Declaring an Emergency” (“the second meter ordina nce”). The
second meter ordinance authorized the city manager to enter int o an amended

contract. {¶ 8} King sent the petition for referendum on the first meter ordina nce to the board on July 21, 2020, along with a cover letter informing the board that the first meter ordinance “was repea led by Newton Falls City Counci l on Monday, July 6 with the passage of [the second meter ordinance].” According to her affidavit filed in this case, King intended the letter to be a statement that, as a result of the passage of the second meter ordina nce, “a referendum on [the fi rst meter ordinance]
would be futile.” She closed her letter to the board with a re quest for “a formal review” of the petitions in suppor t of referenda on the first m eter ordinance and Ordinance 2020-15 (discussed below) “to determine whether eithe r of these ordinances are subject to referendum.” {¶ 9} On July 30, 2020, King received a petition calling for a refere ndum
on the second meter ordinance. K ing delivered the petition to the board for signature verification on August 10, and the board completed th e process by August 13. In her affidavit, King explains that on August 17, she “ex ercised [her own] authority set forth in R.C. 731.29 to determine ‘the sufficienc y and validity of the petition’ ” and rejected the petition on the ground that the se cond meter ordinance was an emergency measure and the refore not subject to referendu m. 2. The law-director ordinance (Ordinance 2020-15) {¶ 10} The Newton Falls charter creates a Department of Law, to be hea ded by “the Director of Law.” The Newton Falls Council has the aut hority to appoint
and remove the law director. On June 1, 2020, the council enac ted Ordinance 2020- 15, which authorized the city manager to enter into an extensio n of the employment
contract with the current law di rector (“the law-director ordin ance”). {¶ 11} On June 29, King received a petition for a referendum on the la wdirector ordinance. The board v erified the signatures, and Kin g validated theJanuary Term, 2020

5 petition and sent it to the boa rd, again raising concerns about the referendum in the cover letter. Specifically, Kin g informed the board that a ref erendum petition over
the same issue had been circula ted in 2009, and the board had n ot allowed it on the ballot. “It is my understanding,” she wrote, “that only legisl ative acts are subject
to referendum and administrativ e acts are not subject to refere ndum.” She requested a “formal review” of the petition. 3. The bond ordinance (Ordinance 2020-19) {¶ 12} On June 24, 2020, the Newton Fa lls Council approved Ordinance 2020-19, which authorized the issuance of bonds to fund the pur chase and renovation of real property for u se as a municipal building (“t he bond ordinance”). On July 20, King received a petition for a referendum on this o rdinance, as well. The board verified the signatures, and following her review and validation, King transmitted the petition to the board on August 17. Once again , King attached a cover letter questioning whether the ordinance was subject to r eferendum.
II. PROCEDURAL HISTORY {¶ 13} On August 5, 2020, Luonuansuu a nd Layshock filed a mandamus complaint against King and the board. The board filed its answ er on August 10, and two days later, Luonuansuu a nd Layshock filed a merit brief in response to that pleading. King filed her answer on August 14, and Luonuansuu a nd Layshock responded by filing a second mer it brief on August 17, addressi ng her answer. King
and the board each filed merit br iefs, and relators filed separ ate, largely repetitive, reply briefs addressed t o each of those briefs. {¶ 14} Respondents did not object to rel ators’ filing of two merit bri efs. But on August 20, King filed a motion to strike the second reply br ief. Luonuansuu and Layshock have filed a memora ndum in opposition to that motion.S UPREME C OURT OF O HIO

6 III. LEGAL ANALYSIS
A. The merits of the mandamus claims {¶ 15} To be entitled to a writ of mandamus, a party must establish, b y clear and convincing evidence, (1) a clear legal right to the request ed relief, (2) a clear legal duty on the part of the r espondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. The relator i n a mandamus action bears the burden of proof, which is heightened due to the extra ordinary nature of the relief sought. State ex rel. Doner v. Zody , 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 56. {¶ 16} Yet in this case, relators have f ailed to present evidence to e stablish
even the most basic facts of the ir claims. Their evidence cons ists of a defective affidavit, 2 copies of the four relevant ordinances, a copy of an Ohio Sena te bill, 3 a March 2016 document labeled “Draf ting Resolutions and Ordinance s, 2016 Local Government Officials Conference, ” purportedly from a seminar sp onsored by the “Auditor of the State,” excerpts from the Newton Falls city cha rter, and a letter from King to the board of elections, dated December 22, 2009, t hat related to an 11-year-old referendum petition. T hese documents are not suffi cient to entitle relators to relief with respect to any of the four petitions. {¶ 17} The chronology in Luonuansuu’s affidavit stops on July 30 with the presentation of the final petition to King, without discussing the disposition of the

2. Relators submitted an affidavit from Luonuansuu based on hi s “ belief and personal knowledge” that the facts contained therein were “true and correct to the best of his knowledge .” (Emphasis added.) But affidavits in support of an original-action compla int must be “made on personal knowledge” of the affiant, S.Ct.Prac.R. 12.02(B)(2), and an aff idavit made “to the best of [the affiant’s] knowledge, information, and belief” is insufficient. State ex rel. Walker v. Husted , 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419, ¶ 25; see also State ex rel. Simonetti v. Summit Cty. Bd. of Elections , 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 11 (an af fidavit made “to the best of” the affiant’s personal knowledge or informatio n does not satisfy the requirement).
3. According to relators, the bill purports to demonstrate the “Correct Format for Repealing [a] Clause” of the Ohio Revised Code.January Term, 2020

7 petitions. Relators allege in their complaint that on August 4 , the board of elections rejected the petitions for referenda on the first meter ordinan ce and the law-director ordinance, but the board’s answe r expressly denies these allega tions. The record therefore contains no evidence to establish that the board reje cted these petitions or, if so, the reason(s) for those rejections. As for any fact ual statements contained in the parties’ merit briefs, “ ‘[t]he briefs and memoranda of the parties are not
evidence.’ ” Smith v. Smith , 9th Dist. Summit Nos. 27988 and 27991, 2017-Ohio360, ¶ 10, quoting Bank One, Columbus, N.A. v. O’Brien , 10th Dist. Franklin Nos. 91AP-166 and 91AP-441, 1991 W L 281429, *5 (Dec. 31, 1991). {¶ 18} With respect to the bond ordinance, relators alleged in their complaint that the board verified the signatures on August 4 bu t that King had not certified the petition to the board for placement on the ballot . But relators filed their suit only one day after the board verified the signatures . According to her affidavit, King transmitted the petitions to the board on Augus t 17. 4 Here again,
there is no evidence in the record to show what the board did w ith the petition, or
that the board has even taken a ny action at a ll on the petition

. {¶ 19} Only with respect to the second me ter ordinance is there eviden ce of the petition’s current status. A s noted above, King states in her affidavit that she rejected that petition herself, on August 17, based on her asse ssment that the second meter ordinance was an emergency measure and therefore not subj ect to referendum. But that evidence di d not come from relators, so o nce again, they have failed to meet their evidentiary burden. More problematic, tho ugh, is the fact that because this occurred after the complaint was filed, any challe nge to King’s decision falls outside the scope of the pleadings. In fact, ev en in their merit briefs, relators continue to insist that they are entitled to the same relief they sought in their

4. “In extraordinary-writ cases, courts are not limited to the facts at the time a proceeding is commenced, but should consider f acts at the time it determines whether to grant the writ.” State ex rel. Everhart v. McIntosh , 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 11.S UPREME C OURT OF O HIO

8 complaint—a writ of mandamus compelling placement of the refere ndum on the ballot—even though that is not the relief to which they would b e entitled if they prevailed in a challenge to King’s decision. {¶ 20} In sum, relators have failed to present evidence establishing t heir right to relief by clear and convi ncing evidence. Therefore, t he request for a writ
of mandamus is denied.
B. The motion to strike {¶ 21} When a case involves multiple r espondents filing separate merit briefs, a relator may file only one reply brief responding to a ll the arguments. S.Ct.Prac.R. 16.04(A)(3) (applicab le to expedited election case s by S.Ct.Prac.R. 12.07 and 12.08(A)(2)). Relators violated this rule by filing two reply briefs. Moreover, the two reply briefs total 24 pages of text, which ex ceeds the 20-page limit set by S.Ct.Prac.R. 16.04(B)(1). Based on these rule vio lations, King has
asked the court to strike the se cond reply brief. However, giv en our disposition of the mandamus claims, these violations are ultimately inconseque ntial. We therefore deny as moot the mo tion to strike the second reply br ief.
IV. CONCLUSION {¶ 22} For the reasons discussed, we deny the writ of mandamus and den y the motion to strike as moot.
Writ denied.
O’C ONNOR , C.J., and F RENCH , F ISCHER , D ONNELLY , and S TEWART , JJ.,

concur. K ENNEDY and D E W INE , JJ., concur in judgment only.

_________________ James Luonuansuu and Patrick Layshock, pro se. Calfee, Halter & Griswold, L.L.P., James F. Lang, Kelly A. Call am, and Brandon E. Brown, for respondent Kathleen King.January Term, 2020

9 Dennis Watkins, Trumbull County Prosecuting Attorney, and Micha el J. Fredericka and Jason M. Toth, Assistant Prosecuting Attorneys, for respondents Kathi Creed, Ronald Knight, Diana Marchese, and the Trumbull Co unty Board of
Elections.

_________________