Watch your Language with Board of Elections (Referendum) Petitions

September 26, 2016

As established in other “Watch Your Language” articles for this Blog, as a general rule, courts will uphold language in commercial agreements, unless it is contrary to statutory law or public policy. Because of this judicial deference to “commercial language”, you must say what you mean, precisely, or a judge will decide what you meant. Compounding the problem is the fact that courts typically refuse to consider extrinsic evidence of a party’s intent (offered by such party) if they determine the contract language is clear and unambiguous. What is said within the “four corners of an agreement” is simply deemed the best evidence of intent.

Saying what you mean, precisely, is as important in drafting statutes and ordinances as it is in commercial agreements. As a general rule, courts will also uphold clear and unambiguous statutory language. “Statutes clear in their terms need no interpretation; they simply need application. If the …language of a statute reveals … a meaning which is clear, unequivocal and definite… the statute must be applied accordingly.” Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, 105-106. Even the failure to follow a seemingly trivial grammar rule (the omission of a comma) can result in unintended consequences. In W. Jefferson v. Cammelleri, 2015-Ohio-2463 (a 12th Appellate District case), the court held that a municipal parking ban ordinance that intended to ban parking of motor vehicles and campers from street parking during certain hours did not apply to an individual who parked his truck overnight because a strict reading of the statutory language serves to prohibit a “motor vehicle camper” from being parked on the street for an extended period of time, and a truck is not a motor vehicle camper.

Based upon the recent case of State ex rel. Jacquemin v. Union Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-5880, saying what you mean, precisely is also important with regard to Board of Election petitions, in this case, a “referendum petition”.

Referendum petitions are petitions to put on the ballot a repeal of an existing law or section of law, and are governed by Ohio Revised Code Chapter 3519. Basically, to lawfully place a referendum on the ballot, petitioners must draft changes to (or repeal of) an existing law, prepare a summary of the same, and garner at least 1,000 signatures.

In Jacquemin, the law the petitioners wanted repealed was a Jerome Township resolution, adopting (and modifying) the Township Zoning Commission’s approval of an application for a Mixed Use Planned Development (PUD #15-120) for property owned by the Jacquemins and others. The PUD would include senior housing and care and multi-unit housing where such uses were not permitted prior to the resolution. The referendum petition summary described the location of the PUD as “Between the West side of Hyland Croy Road and the East side of US 33.”

The Jacquemins filed a protest of the petition with the Union County Board of Elections. On April 12, 2016, the board held a hearing and voted to deny the protests and to place the referendum issue on the November 8, 2016 ballot. The Jacquemins then appealed the board’s decision to the Ohio Supreme Court to prevent the board from placing the referendum on the ballot. The Jacquemins contended that the referendum summary was invalid because it contained six omissions and three errors. The Ohio Supreme Court focused on just one of the errors in the petition summary. The summary states that the nearest intersection to the properties is “Hyland-Croy Road and SR 161 – Post Road.” But the closest intersection is actually Hyland-Croy Road and Park Mill Drive; the difference being a quarter of a mile. At first glance, as stated by the court, “Without more, the error seems minor enough.”

Is there more? The Supreme Court of Ohio thought so. To reach that conclusion, the court first looked at precedent (prior court decisions on point) regarding petition summary mistakes. According to precedent, “If the mistake makes the summary “misleading, inaccurate or contains material omissions which would confuse the average person, the petition is invalid and may not form the basis for submission to a vote.”

The court then applied the law to the facts and held that the mistake in the petition summary was indeed misleading. How is listing one cross street vs. another ¼ mile away on a 60 acre parcel misleading? According to the court, “the context of the mistake informs its import.” The context in Jacquemin is that the misidentified intersection is near the location of land now zoned for big-box retail use, as a result of a contentious zoning change already approved for a development to the southwest of this property.

According to the court, “By misidentifying the nearest intersection as one that is near property that is already being developed for big-box retail use, the petition summary may have poisoned would-be signers against the new development, which is more than a quarter mile away from the intersection identified in the summary. At the very least, it suggests to a would-be signer that the developments would nearly overlap each other. The petition summary is therefore misleading and cannot form the basis to submit this issue to a vote.”

What is the moral of this story? While it is comforting that the Ohio Supreme Court, in this case looked to context, and not simply that a mislabeling mistake was made, the moral of this story is that our high school English teachers were right, we must “watch our language” because mistakes in the “real world” will be much more costly than a lower letter grade.