Key Points

  • The Ohio Supreme Court denied a writ of mandamus that would have required the Lorain County Board of Elections to place a proposed Avon Lake charter amendment on the November 3, 2026 ballot.
  • Even if a board of elections' duty to place a properly submitted charter amendment on the ballot is ministerial, relators must still show a clear legal right to the specific relief, and placement on an election fewer than 60 days after the ordinance's passage violates Article XVIII, Section 8 of the Ohio Constitution.
  • The court distinguished Westlake and Sydnor because those cases ran against city councils, not boards of elections, and expressed no opinion on whether the Avon Lake council could have passed the ordinance on first reading.
  • Columbus Day is a legal holiday that extended relators' merit-brief deadline, and a motion to dismiss is not a pleading subject to a Civ.R. 12(F) motion to strike.
  • Losing relators are not entitled to attorney fees under the taxpayer statutes or other theories, and a second suit against a different respondent after a mootness dismissal was not frivolous under S.Ct.Prac.R. 4.03(A).

The Ohio Supreme Court on Oct. 28 refused to order a citizen-proposed amendment to the Avon Lake city charter onto the Nov. 3 general-election ballot. The court held that the Ohio Constitution's timing rules for charter amendments barred the vote, even if the county elections board's duty in placing such measures on the ballot is ministerial.

The unsigned per curiam opinion, joined by Chief Justice Kennedy and Justices DeWine, Brunner, Deters, Hawkins and Shanahan, denied a writ of mandamus. A citizens' committee, two of its members and Ohio Citizens for Honesty, Integrity, and Openness in Government, Ltd. had sought the writ against the Lorain County Board of Elections. Justice Fischer concurred in judgment only.

The ruling, issued six days before the election, means Avon Lake voters will not decide the measure on Nov. 3. The amendment would, among other things, repeal a city ordinance setting the percentage of the city-income-tax resident credit and restore that credit to 1.5 percent. The court held that an ordinance setting a ballot date cannot override Article XVIII, Section 8 of the Ohio Constitution, which requires a charter-amendment vote to take place 60 to 120 days after the city council passes the ordinance submitting it.

According to the opinion, Gerald W. Phillips, the committee's chairperson and its lawyer in the case, filed the petition with city officials on Sept. 1, 2026, with 614 signatures. The board found enough valid signatures.

The city council took up the submitting ordinance, Ordinance No. 26-83, at a special meeting on Sept. 3. A city rule bars passage of an ordinance until it has been read at three different council meetings unless two-thirds of members vote to suspend the rule. The committee alleged that a motion to suspend failed, so the ordinance received readings on Sept. 3, 14 and 28 and passed after the third. As enacted, it submitted the amendment to voters "at the election to be held on November 5, 2026." The council sent it to the board on Oct. 2, and the board did not place the measure on the Nov. 3 ballot.

The committee filed suit in the Supreme Court on Oct. 6. It argued that the board's duty was "clear" and "ministerial." The court agreed with that premise, writing that the argument "begins on solid legal footing" and quoting its earlier statement that a "board of elections has nothing but a ministerial role under the Constitution."

But the court held that the ministerial character of the duty did not settle the case. "But even if the board's duty in this regard is ministerial, relators still must establish by clear and convincing evidence their clear legal right to the relief sought," the court wrote. Section 8 provides that the ordinance "shall require that it be submitted to the electors at the next regular municipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage." If no such election falls in that window, the vote must come at a special election held within the same period.

Regular municipal elections in Ohio take place in odd-numbered years, so none fell within the window after the Sept. 28 passage. The ordinance's chosen date was fewer than 60 days away. The committee's briefs described the ordinance as calling for the Nov. 3 election, while the certified copy said Nov. 5. The court held that "this discrepancy is immaterial: an election on either November 3 or 5 would be outside the 60- to 120-day time frame required by Article XVIII, Section 8."

The committee contended that the council had committed an "abuse of discretion" by waiting for three readings instead of passing the ordinance on Sept. 3, which, the committee implied, would have put Nov. 3 inside the window. It relied on two earlier Ohio Supreme Court decisions, Westlake (2002) and Sydnor (1991). In those cases, the court ordered city councils that had failed to act for unjustifiable reasons to submit amendments for even-year state-election ballots.

The court wrote that "more recently, we have emphasized the timing requirements of Article XVIII, Section 8, rather than relying on the reasoning of Westlake and Sydnor." It also distinguished those cases because they ran against city councils, while this suit named only the elections board. "We therefore express no opinion on the underlying issue of whether the city council could have passed Ordinance No. 26-83 after its first reading on September 3," the court wrote, adding that "the evidence in this case establishes that it did not pass it on that date."

The committee's remaining claim was that the ordinance itself gave it a right to the Nov. 3 ballot. The court rejected that claim, writing that "this position does not withstand the general principle that the requirements of the Constitution must prevail."

The court also resolved several procedural motions. The board had moved to dismiss because the committee's merit brief, due Oct. 12, arrived Oct. 13. "Because October 12 was a legal holiday, the board is wrong," the court wrote, because Columbus Day extended the deadline by one day. The court denied the committee's motion to strike the board's motion under Civil Rule 12(F), holding that the rule reaches only pleadings and that "[a] motion to dismiss is not a pleading."

The court denied attorney fees, holding that a losing party cannot recover them under Ohio's taxpayer-suit statutes, the common law, the common-fund doctrine or a bad-faith theory. It granted the committee's unopposed motion to post a cash deposit as security for costs.

The court also refused to sanction the committee and its counsel under S.Ct.Prac.R. 4.03(A), which since April 1, 2025, has applied to individual filings. The board argued that the suit's failure "ought to have been clear" after the court dismissed as moot the committee's earlier case against the city council, which sought to force passage of the ordinance. The court held that the earlier case sought different relief against a different respondent, and that "the fact that we dismissed Rosmarin as moot does not render this case frivolous under S.Ct.Prac.R. 4.03(A)."

Phillips, of Phillips & Co., L.P.A., represented the committee and the other relators. The board was represented by the office of Lorain County Prosecuting Attorney Anthony Cillo.

The court's judgment reads "Writ denied." Under the court's reading of Section 8, the earliest lawful vote on the amendment would have been a special election held at least 60 days after the Sept. 28 passage. The opinion orders no such election and leaves open whether the council could have passed the ordinance sooner.