Squire v. Geer

885 N.E.2d 213, 117 Ohio St. 3d 506
CourtOhio Supreme Court
DecidedApril 2, 2008
DocketNo. 2007-1684
StatusPublished
Cited by12 cases

This text of 885 N.E.2d 213 (Squire v. Geer) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Squire v. Geer, 885 N.E.2d 213, 117 Ohio St. 3d 506 (Ohio 2008).

Opinion

Per Curiam.

{¶ 1} This is an appeal from a judgment denying an election contest. Because the appellant failed to establish by clear and convincing evidence that any election irregularities affected enough votes to change or make uncertain the election result, we affirm.

{¶ 2} On November 7, 2006, an election was held in Franklin County, Ohio, to elect a candidate to the office of judge of the Franklin County Court of Common Pleas, Domestic Relations Division and Juvenile Branch, for the term commencing January 5, 2007. The candidates were appellant, Carole R. Squire,1 and appellee Christopher J. Geer.

{¶ 3} Appellee Franklin County Board of Elections conducted the official canvass of the election returns on November 27, 2006, and declared Geer the winner by a vote of 137,941 to 124,877, a margin of 13,064 votes. Squire requested a recount of 35 precincts as well as all absentee and provisional ballots. On December 14, 2006, after conducting this recount, the board of elections again declared Geer the winner, this time by a vote of 137,979 to 124,910, a margin of 13,069 votes.

{¶ 4} On December 22, 2006, Squire filed a complaint in the Court of Appeals for Franklin County contesting the election. Squire claimed that “[g]ross irregularities and stunning violations of Ohio law occurred in connection with the casting of ballots, tabulation of votes, and recount procedures affecting enough votes to change or make uncertain the November 7, 2006 election result.” Squire requested that the election be set aside and declared invalid and that she be declared the victor. In her complaint as well as by separate motion, Squire requested that the court of appeals conduct a recount.

{¶ 5} The court of appeals ordered the board of elections to forward to the clerk of the court all ballot materials pertinent to the recount in the election, including “ballots, poll books, paper rolls, provisional ballots and/or books, and any other records necessary for this court to determine the merits of this contest action.” In accordance with the order, the board gathered the relevant materials but was advised by the court administrator to keep the records until the court [508]*508could find a suitable location for them. Upon Squire’s affidavit seeking disqualification of the judges of the Franklin County Court of Appeals, the chief justice disqualified them and appointed three judges from outside the county to preside over the case.

{¶ 6} Following a trial pursuant to R.C. 3515.08(C) and 3515.11, the court of appeals denied the election contest. The court of appeals concluded that although Squire had established that one or more election irregularities had occurred, she “failed to prove by clear and convincing evidence that a sufficient number of votes were actually affected to make the outcome of the election uncertain.” The court also denied Squire’s motion for a second recount.

{¶ 7} The cause is now before us upon Squire’s appeal and upon appellees’ joint motion to strike appellant’s reply-brief appendix and the portions of appellant’s reply brief relying on the appendix.

Motion to Strike

{¶ 8} Squire submitted an appendix with her reply brief that included six documents that were not part of the record before the court of appeals. One of these documents is the December 7, 2007 final report of the evaluation and validation of election-related equipment, standards, and testing in Ohio prepared as part of a project initiated by the secretary of state. Squire relies on this report’s findings in her reply brief.

{¶ 9} On January 15, 2008, appellees filed a joint motion to strike appellant’s reply-brief appendix and portions of appellant’s reply brief relying on the appendix. On January 25, appellant filed a memorandum in opposition.

{¶ 10} “The determination of a motion to strike is vested within the broad discretion of the court.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 26. In exercising this discretion here, we grant appellees’ motion for the following reasons.

{¶ 11} First, Squire’s new material may not be considered. “ ‘We cannot * * * add matter to the record before us that was not part of the court of appeals’ proceedings and then decide the appeal on the basis of the new matter.’ ” North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16. We have applied this principle in an election-contest appeal to strike portions of an appendix in a brief that were not part of the trial court record. In re Contested Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 413, 650 N.E.2d 859.

{¶ 12} Second, although appellate courts can take judicial notice of certain matters, see, e.g., State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 9-10, the exhibits in Squire’s appendix to her reply [509]*509brief do not contain facts susceptible of judicial notice. Evid.R. 201 specifies that a “judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably] be questioned.” Squire’s exhibits, including the report prepared as part of the project initiated by the secretary of state, do not contain facts that are “not subject to reasonable dispute,” as required by the rule. See Natl. Distillers & Chem. Corp. v. Limbach (1994), 71 Ohio St.3d 214, 215-216, 643 N.E.2d 101.

{¶ 13} Therefore, we grant appellees’ motion and strike Squire’s reply-brief appendix as well as the portions of her reply brief relying on the appendix.

Election Contest — Standard of Proof

{¶ 14} Squire contests the November 7, 2006 election for the office of judge of the Franklin County Court of Common Pleas, Domestic Relations Division and Juvenile Branch. In assessing Squire’s claim, “every reasonable presumption should be indulged in favor of upholding the validity of an election and against ruling it void.” In re Election Contest of Democratic Primary Election Held May 4, 1999 for Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 262, 725 N.E.2d 271. “[A]n election result will not be disturbed unless the evidence establishes that the result was contrary to the will of the electorate.” Id.; see also Crane v. Perry Cty. Bd. of Elections, 107 Ohio St.3d 287, 2005-Ohio-6509, 839 N.E.2d 14, ¶ 20.

{¶ 15} To prevail in her election contest, Squire “had to establish by clear and convincing evidence that one or more election irregularities occurred and that the irregularity or irregularities affected enough votes to change or make uncertain the result of the * * * election,” Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, 816 N.E.2d 579, ¶ 21.

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Bluebook (online)
885 N.E.2d 213, 117 Ohio St. 3d 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/squire-v-geer-ohio-2008.