COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68134 : STATE OF OHIO EX REL. LAWRENCE A. : SALIBRA : : JOURNAL ENTRY Relators-Appellants : : and -vs- : : OPINION CUYAHOGA COUNTY BOARD OF ELECTIONS : : : Respondents-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-278124 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Relators-Appellants: For Respondents-Appellees: JOHN S. KLUZNIK, ESQ. STEPHANIE TUBBS JONES, ESQ. WILLIAM H. BAUGHMAN, JR., ESQ. Cuyahoga County Prosecutor WESTON, HURD, FALLON, PAISLEY MICHAEL P. BUTLER, ESQ. & HOWLEY Assistant Prosecuting Attorney 2500 Terminal Tower The Justice Center Cleveland, Ohio 44113-2241 1200 Ontario Street Cleveland, Ohio 44113 LAWRENCE A. SALIBRA, II, ESQ. 100 Erieview Plaza, 17th Floor CHRISTOPHER L. GIBBON, ESQ. Cleveland, Ohio 44114 CHARLES T. RIEHL, ESQ. WALTER & HAVERFIELD 1300 Terminal Tower Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: This appeal arises from an order of the common pleas court denying a writ of mandamus to compel the Cuyahoga County Board of Elections ("Board of Elections") to place an ordinance proposed by initiative petition on the November 8, 1994, ballot. Relators-appellants, four residents of the Village of Gates Mills ("Gates Mills"), filed a verified complaint for a writ of mandamus in the common pleas court on October 5, 1994. Relators alleged they properly signed and timely filed with Gates Mills an initiative petition proposing an ordinance to prohibit the installation of water or sewer lines within Gates Mills without prior approval of the electorate. Relators further alleged that Gates Mills certified the initiative petitions to the Board of Elections, but that on September 21, 1994, the Board of Elections granted a protest by certain electors and refused to place the proposed ordinance on the November 8, 1994, ballot. Relators' October 5, 1994, complaint requested peremptory and alternative writs of mandamus to compel the Board of Elections to place the proposed ordinance on the November 8, 1994, ballot. The matter proceeded to a hearing before the common pleas court on October 11, 1994. Relators conceded at the outset of the hearing that one of their requests, that is, for a peremptory writ of mandamus, was moot because absentee ballots without the proposed ordinance had already been distributed on October 4, 1994. The common pleas court denied Relators' request for an - 3 - alternative writ of mandamus and dismissed their complaint in a five-page typewritten judgment entry journalized on October 11, 1994, five days after the filing of the complaint. Relators did not file a notice of appeal from the judgment of the common pleas court denying the writ of mandamus until November 9, 1994, the 1/ day following the election. Respondent-appellee Gates Mills filed a motion to dismiss this appeal on grounds of mootness during the course of the appeal. Gates Mills argues, inter alia, that this appeal is moot because the November 8, 1994, election for which Relators sought to place the proposed ordinance on the ballot was completed before the filing of this appeal. Relators filed a brief in opposition to the motion to dismiss. The record demonstrates that the Board of Elections decided on September 21, 1994, not to place the ordinance proposed by Relators on the November 8, 1994, ballot. Relators did not file their complaint for mandamus in the common pleas court until October 5, 1994, after absentee ballots for the November 8th election, without the proposed ordinance, had already been distributed. Relators conceded their request for peremptory writ of mandamus was moot at the outset of the case, and the common 1/ Relators raise the following sole assignment of error: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONCLUDING THE BOARD OF ELECTIONS WAS ACTING WITHIN ITS SCOPE OF AUTHORITY WHEN THE BOARD OF ELECTIONS DETERMINED THAT THE ORDINANCE PROPOSED BY INITIATIVE PETITION WAS AN ILLEGAL AUTOMATIC REFERENDUM AND WAS AUTHORIZED ON THAT BASIS TO DENY CERTIFICATION. - 4 - pleas court denied their request for an alternative writ of mandamus to compel the Board of Elections to place the ordinance on the ballot on October 11, 1994. Despite knowledge of the imminent election date and that further delay may serve to moot their claims entirely, Relators did not appeal from the denial of the alternate writ of mandamus until approximately three weeks thereafter on November 9, 1994, the day following the election. The Ohio Supreme Court has recognized that an appeal from the denial of a writ of mandamus to compel the placement of material on a ballot is moot when the election occurred before the appeal was filed as in the case sub judice. State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177. Extreme diligence and promptness is required in election cases since time is a critical factor. State ex rel. Alexander v. Brown (1988), 51 Ohio App.3d 26. Since the November 8, 1994, election date has passed, an order compelling the proposed ordinance to be placed on the November 8, 1994, ballot as Relators request would constitute a vain act. It is well established that relief by the extraordinary writ of mandamus will not be ordered if the result is to mandate a vain act. State ex rel. Snider v. Stapleton (1992), 65 Ohio St.3d 40, 42. This conclusion is particularly warranted in this case. Relators specifically admitted that their delay before seeking mandamus in the common pleas court mooted their request for a peremptory writ. Relators nevertheless continued to engage in - 5 - delay, despite the common pleas court's expedited resolution of this matter, by waiting until after the election to appeal. The parties in this appeal dispute (1) the authority of the Board of Elections to determine the constitutionality of matters proposed by initiative petition, and (2) the proper timing for 2/ the constitutionality determination. We question whether the Board of Elections has authority to determine the constitutionality of the proposed ordinance; however, directing the Board of Elections to place the proposed ordinance on the ballot would not provide effective relief under the circumstances of this case. The Ohio Supreme Court has held that municipalities governed by the Ohio Revised Code referendum provisions as in this case may not adopt conflicting automatic referendum ordinances. Rispo Realty v. City of Parma (1990), 55 3/ Ohio St.3d 101. As noted by the common pleas court, the provisions of the proposed ordinance which require prior approval of certain water and sewer projects by a majority of the 2/ The scope of the Board's authority depends on the nature of the matter proposed. See State ex rel. Rhodes v. Bd. of Elections (1967), 12 Ohio St.2d 4 (resolution); State ex rel. Schultz v. Bd. of Elections (1976), 50 Ohio App.2d 1, 5-6 (ordinance). 3/ The municipality in Rispo had no charter; therefore, the Ohio Revised Code provisions applied directly. Although Gates Mills has a charter in this case, the same referendum provisions set forth in R.C. 731.28 et seq. apply because the charter expressly adopts them by reference. The proposed ordinance in this case suffers from the same defect as the ordinance in Rispo because, without complying with the Revised Code referendum procedures, it purports automatically to require prior approval of certain issues by the electorate. - 6 - electorate seek to circumvent the Charter and statutory referendum procedures entirely. (Common Pleas Court Judgment Entry at pp. 4-5.) Accordingly, under Rispo, even if the proposed ordinance were placed on the ballot and approved by the electors, the automatic referendum provisions would be invalid 4/ after enactment. Relators obtained administrative and judicial determinations concerning this issue before the election but did not appeal to this court of appeals before the election took place. Relators' delay in filing this appeal until after the election was completed has rendered the case moot. This court cannot grant effective relief for two reasons. First, the November 8, 1994, election for which Relators sought to place the proposed ordinance on the ballot has long been completed. Second, as noted by the common pleas court, even if placed on the ballot, the automatic referendum provisions of the proposed ordinance would be invalid because they conflict with the Ohio Revised Code automatic referendum provisions. Accordingly, Relators' sole assignment of error is overruled. Judgment affirmed. 4/ We decline to address Relators' arguments concerning the validity of other aspects of the proposed ordinance because these issues were not sufficiently raised in the Board of Elections or the common pleas court. - 7 - It is ordered that appellees recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J., and BLACKMON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .