State ex rel. City of Toledo v. Lucas County Board of Elections

765 N.E.2d 854, 95 Ohio St. 3d 73
CourtOhio Supreme Court
DecidedMarch 28, 2002
DocketNo. 02-366
StatusPublished
Cited by39 cases

This text of 765 N.E.2d 854 (State ex rel. City of Toledo v. Lucas County Board of Elections) 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
State ex rel. City of Toledo v. Lucas County Board of Elections, 765 N.E.2d 854, 95 Ohio St. 3d 73 (Ohio 2002).

Opinion

Per Curiam.

Effective January 8, 2002, Edna Brown resigned her office as a member of the Toledo City Council to accept a seat in the Ohio General Assembly. Brown was the District 4 city council representative, and her latest term began in 2001. Following Brown’s resignation, the city council appointed Michael Ashford to fill the vacancy pending a special election for Brown’s unexpired council term.

Michael Beazley, the Clerk of the Toledo City Council, requested that respondent Lucas County Board of Elections conduct a special election for Brown’s unexpired council term during the May 7, 2002 primary election. Relator, city of Toledo, satisfied all of the applicable requirements to have the special election to fill the vacancy placed on the May 7, 2002 election ballot. Several individuals interested in being candidates for the office obtained blank nominating petitions from the board. On February 28, 2002, after reviewing an opinion from the Toledo Director of Law and receiving the advice of the Lucas County Prosecuting Attorney, the board decided not to certify petitions filed for the unexpired term for the District 4 council seat in the May 7 primary election.

On March 1, 2002, Toledo filed this expedited election action for a writ of mandamus to compel respondents, the board of elections and its members, to conduct a special election on May 7, 2002, to fill the city council vacancy. Respondents filed an answer and a motion for judgment on the pleadings, and the parties filed evidence and briefs pursuant to the expedited election schedule in S.CtPrac.R. X(9). This cause is now before the court for a consideration of the merits.

[74]*74Motion for Judgment on the Pleadings

Respondents, Lucas County Board of Elections and its members, request judgment on the pleadings under Civ.R. 12(C). In order to be entitled to dismissal under Civ.R. 12(C), it must appear beyond doubt that Toledo can prove no set of facts warranting the requested relief, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in the city’s favor. State ex rel. Brantley v. Ghee (1998), 83 Ohio St.3d 521, 522-523, 700 N. E.2d 1258.

We deny the motion because, like other procedural motions, the motion is inappropriate in expedited election cases filed here. See, e.g., State ex rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d 205, 206, 602 N.E.2d 644. Under S.CtPrac.R. X(9), the presentation of evidence and briefs on the merits in expedited election cases is provided in lieu of a S.Ct.Prac.R. X(5) determination, making procedural motions generally inapplicable. State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 111, 712 N.E.2d 696.

In addition, even if S.Ct.Prac.R. X(5) were applicable here, respondents’ motion was inappropriate. S.Ct.Prac.R. X(5) requires that any motion for judgment on the pleadings be filed “at the same time an answer is filed.” Respondents filed their motion four days after their answer was filed.

Therefore, we deny respondents’ motion for judgment on the pleadings and consider the contentions raised therein in our decision on the merits.

Merits: Preliminary Issues

Respondents initially assert that Toledo is not entitled to the requested writ of mandamus because no nominating petitions have yet been filed with the board by any candidate to run in any municipal election, Toledo is not authorized to institute a mandamus action, and Toledo lacks standing to bring this mandamus action.

Respondents’ claims lack merit. First, it is evident that as of February 28, 2002, the board expressly declared that it would not conduct a municipal election for the unexpired term of the District 4 council seat. As a consequence thereof, prospective candidates and other injured persons or entities did not need to try to file or wait for someone to file nominating petitions for an election that respondents had already ruled would not occur before they could challenge the board’s action. See, e.g., State ex rel. White v. Cleveland (1973), 34 Ohio St.2d 37, 63 O.O.2d 79, 295 N.E.2d 665, paragraph two of the syllabus (request for records not required before bringing mandamus action if circumstances establish that request would be futile or unavailing); State ex rel. Cincinnati Enquirer v. Krings (2001), 93 Ohio St.3d 654, 659, 758 N.E.2d 1135; State ex rel. Cotterman v. St. Marys Foundry (1989), 46 Ohio St.3d 42, 44, 544 N.E.2d 887 (“While it is true that [75]*75mandamus relief will be denied if administrative avenues are not exhausted, * * * it is also true that a person need not pursue administrative remedies if such an act would be futile”).

Given the board’s February 28, 2002 decision, some prospective candidates were undoubtedly discouraged from filing petitions for an election that the board would not conduct. Toledo need not have waited for candidates to have filed petitions to challenge the board’s ruling by way of mandamus. See State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291-292, 649 N.E.2d 1205, quoting State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 412 N.E.2d 393 (“Concerning the third prerequisite for a writ * * *, given the proximity of the election, an injunction would arguably not constitute an adequate remedy because any ‘appellate process would last well past the election’ ”).

Respondents next assert that the city is authorized to bring a mandamus action in only two ways, neither of which applies here. But respondents cite no persuasive, applicable authority for this proposition. Sections 111 and 115 of the Toledo Charter merely specify those instances when the Director of Law has a mandatory duty to prosecute actions on behalf of the icity in general and to institute mandamus actions due to an officer’s failure to perform a duty in particular. Neither charter section nor the statutes cited by the board and its members purport to preclude the law director from, in the exercise of discretion, seeking a writ of mandamus in other instances on behalf of the city. See, e.g., Toledo Charter Section 109, providing that the Director of Law or City Attorney “shall prosecute or defend suits for and in behalf of the City,” without limiting that authority. In fact, as the city notes, a contrary construction of Section 111 of the Toledo Charter would require that in every lawsuit filed against the city, the law director would have to obtain a council resolution before defending the city in the suit. And R.C. 715.01 specifies that each municipal corporation may “sue and be sued.”

As a final preliminary contention, respondents claim that Toledo lacks standing to bring this action.

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Cite This Page — Counsel Stack

Bluebook (online)
765 N.E.2d 854, 95 Ohio St. 3d 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-city-of-toledo-v-lucas-county-board-of-elections-ohio-2002.