The State ex rel. Khumprakob et al.
Mahoning County Board of Elections et al.
Submitted April 12, 2018
J. Lodge and Jensen Silvis, for relators.
J. Gains, Mahoning County Prosecuting Attorney, and Sharon K.
Hackett, Linette M. Stratford, and Mark D'Apolito,
Assistant Prosecuting Attorneys, for respondents.
Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield
Hughes, and Kathleen M. Trafford; and McTigue & Colombo,
L.L.C., Donald J. McTigue, and Ben F.C. Wallace, urging
denial of the writ for amici curiae Affiliated Construction
Trades Ohio Foundation, Ohio Chamber of Commerce, and
American Petroleum Institute.
Mangano Law Offices Co., L.P.A., Joseph J. Guarino III, and
Ryan K. Hymore, urging denial of the writ for amici curiae
Western Reserve Building and Construction Trades Council
(Youngstown Warren Regional Chamber), Youngstown Warren Black
Caucus, Community Mobilization Coalition, and Mahoning
1} In this case, relators, four Youngstown electors,
seek a writ of mandamus to compel respondents, the Mahoning
County Board of Elections and its members (collectively,
"the board"), to place a proposed amendment to the
Youngstown city charter-a so-called "Youngstown Drinking
Water Protection Bill of Rights"-on the May 2018 ballot.
The proposed charter amendment, if adopted by Young
town's electors, would in general terms (1) recognize
certain rights of Youngstown residents and of
"ecosystems and natural communities within the
city" to "clean water, air, and soil" and to
be free from certain fossil-fuel drilling and extraction
activities, (2) require the city to prosecute violations of
the amendment and allow the city to recover attorney fees and
expert costs incurred in prosecuting violations, (3) impose
strict liability on any government or corporation that
violates the rights established by the amendment, (4)
restrict the use of funds allocated to the city's water
and sewer infrastructure, and (5) give the people of
Youngstown the right "to compel their governments to
protect their rights, health, and safety."
2} On February 12, 2018, the committee formed to
have the measure placed on the ballot submitted its
part-petitions to the Youngstown city clerk. After the board
certified a sufficient number of valid signatures to qualify
the measure for the ballot, the Youngstown City Council
passed an ordinance instructing the board to place the
proposed charter amendment on the May 2018 ballot. But the
board, finding that the proposed amendment "contains
provisions that are beyond the scope of the City of
Youngstown's power" to enact, voted not to place the
proposed amendment on the ballot.
3} On March 16, relators filed this original action
for a writ of mandamus to compel the board to place the
proposed charter amendment on the ballot.
4} To be entitled to a writ of mandamus, relators
must prove, by clear and convincing evidence, (1) a clear
legal right to the requested relief, (2) a clear legal duty
on the part of the board 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. When we review a
decision of a county board of elections, the standard is
whether the elections board engaged in fraud or corruption,
abused its discretion, or acted in clear disregard of
applicable legal provisions. State ex rel. Jacquemin v.
Union Cty. Bd. of Elections, 147 Ohio St.3d 467,
2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.
5} We addressed a similar issue last year in
State ex rel. Flak v. Betras, ___ Ohio St.3d ___,
2017-Ohio-8109, ___N.E.3d ___, which involved an earlier
version of the Youngstown Drinking Water Protection Bill of
Rights. Like the current proposal, the version at issue in
Flak would have given Youngstown residents and the
" 'ecosystems and natural communities within the
city' " the right to " 'clean water, air,
and soil' " and to be free from certain fossil-fuel
drilling and extraction activities. Id. at ¶ 4,
quoting the proposed charter amendment at issue in that case.
The former proposal also would have authorized "private
citizens to enforce their rights through nonviolent direct
action or by filing suit as a private attorney general."
6} In Flak, applying our caselaw that
preceded the enactment of 2016 Sub.H.B. No. 463, we examined
whether the board had abused its discretion in determining
that the measure was outside the municipality's
legislative authority. See Flak at ¶ 9, 17. We
agreed with the board's determination that a municipality
lacks legislative power to authorize Youngstown residents to
file suit as a "private attorney general, " because
a municipality cannot create a new cause of action.
Id. at ¶ 15-16.
7} Significantly, the offending provision in
Flak is not included in the proposed charter
amendment now before us, and the board offers no clear
support for its conclusion that relators' current
proposal is beyond the scope of the city's legislative
power. The hearing transcript reveals that two members of the
board decided this matter on the basis of Flak, but
there was no creation of a private right of action-an
"individual's right to sue in a personal capacity to
enforce a legal claim, " Black's Law
Dictionary 1520 (10th Ed.2014)-in this case.
8} A municipality retains the ability to "make
the violation of any of its ordinances a misdemeanor, and
provide for the punishment thereof by fine or imprisonment,
or both." R.C. 715.67. The proposed charter
amendment's requirement that the city prosecute
violations of the amendment committed by corporations and its
establishment of a strict-liability mens rea for violations
may become elements of future ordinances. But as presented to
the board, the proposed amendment's provisions are vague
and largely aspirational. They do nothing without further
legislative action by the city. Thus, although the proposed
amendment would not necessarily be constitutional or legally
enforceable if enacted, the board abused its discretion in
finding that the measure exceeds Youngstown's legislative
9} We hold that relators have a clear legal right to
have their proposal placed on the ballot and that the board
has a clear legal duty to provide that relief. Also, because
relators could not have challenged the board's action
until the board voted to exclude the proposed measure from
the ballot, we hold that relators lack an adequate remedy in
the ordinary course of the law.
O'CONNOR, C.J., and KENNEDY, DEWINE, and DEGENARO, JJ.,
FISCHER, J., concurs in judgment only, with an opinion.
FRENCH, J., dissents, with an opinion joined by
Fischer, J., concurring in judgment only.
10} I write separately to make clear my reasons for
agreeing with this ...