State ex rel. Ryant Committee v. Lorain County Board of Elections

712 N.E.2d 696, 86 Ohio St. 3d 107, 1999 Ohio LEXIS 1941

• Court: Ohio Supreme Court
• Decided: June 23, 1999
• Docket: No. 99-941
• Status: Published

Opinions

Per Curiam.

Motions to Dismiss

Respondents filed motions to dismiss this cause. Respondents’ motions are meritless. Respondents the board, its members, and First Interstate improperly attached to their motions and relied on evidence that is not contained in relators’ complaint or amended complaint. State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 207, 680 N.E.2d 985, 986-987. In addition, these motions are generally inappropriate in expedited election cases filed in this court. See State ex rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d 205, 206-207, 602 N.E.2d 644, 645, construing former S.Ct.Prac.R. VIII(11). Under S.Ct.Prac.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) dismissal determination, making procedural motions normally inapplicable. See State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 184-185, 685 N.E.2d 507, 509, quoting Staff Commentary to S.Ct.Prac.R. X(9). Finally, after construing the allegations of relators’ amended complaint and all reasonable inferences therefrom in their favor, we find that it is not beyond doubt that relators cannot prove a set of facts entitling them to the requested writ. State ex rel. Kaylor v. Bruening (1997), 80 Ohio St.3d 142, 684 N.E.2d 1228; State ex rel. Lee v. Trumbull Cty. Probate Court (1998), 83 Ohio St.3d 369, 372, 700 N.E.2d 4, 7.² Therefore, we deny respondents’ motions to dismiss.

Prohibition; Specificity of Objections and Laches

Relators request a writ of prohibition to, among other things, prevent the board and its members from announcing and certifying the June 1, 1999 election results. We, however, need not address relators’ claims because of their failure to specify objections in their March 30, 1999 protest in accordance with R.C. 3501.39 and their concomitant failure to act with the diligence and promptness required in election matters.

The board has authority under R.C. 3501.11(K) and 3501.39 to determine the sufficiency and validity of municipal initiative and referendum petitions. State ex rel. Manos v. Delaware Cty. Bd. of Elections (1998), 83 Ohio St.3d 562, 564, 701 N.E.2d 371, 372. Like the municipal charter in State ex rel. Kennedy v. Cuyahoga Cty. Bd. of Elections (1976), 46 Ohio St.2d 37, 39, 75 O.O.2d 100, 102, 346 N.E.2d 283, 285, the Avon Charter makes no reference to the board of elections, nor does it purport to negate the board’s duties and powers under R.C. 3501.11(K) and 3501.39. If the framers of the Avon Charter had intended to completely divest boards of elections, which are the local authorities best equipped to gauge compliance with election laws, of their authority to determine the sufficiency and validity of municipal initiative and referendum petitions, they would have done so with unambiguous language. Cf. State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224, 231, 685 N.E.2d 754, 760. In the absence of express language in a charter demonstrating a conflict with a statute, it is the duty of courts to harmonize the provisions of the charter and statutes relating to the same matter. State ex rel. Regetz v. Cleveland Civ. Serv. Comm. (1995), 72 Ohio St.3d 167, 170-171, 648 N.E.2d 495, 498. Here, council acted pursuant to its charter authority and that authority does not negate the board of elections’ statutory protest authority.

R.C. 3501.39(A)(2) provides that a board of elections shall accept any petition unless a “written protest against the petition * * *, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition violates any requirement established by law.” (Emphasis added.)

Relators’ March 30 protest filed with the board contained twenty-five separate challenges, most of which attacked the validity of petition signatures, but failed to specify the signatures involved in each challenge. Relators had already copied the petition on March 2 and had filed a March 22 objection with city council concerning the clerk of council’s March 10 determination of sufficiency. The twenty-eight days between March 2 and March 30 provided ample time for relators to review the part-petitions and board records to formulate specific objections to specific signatures. Instead, relators chose to include a laundry list of general, alleged defects. In the absence of specific objections, the board, the petitioners, and First Interstate were left with one hundred twenty part-petitions containing over two thousand four hundred signatures and no notice of which specific signatures were being challenged and for what reasons.

Relators’ general objections did not give the board, Avon Citizens Committee, and First Interstate sufficient notice of their claims. As we observed in State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308, 686 N.E.2d 238, 243, “One of the evident purposes of [the specificity] requirement is to give notice to the petitioner and the’ opportunity to present evidence to rebut the objections specified.” That purpose was not achieved here. First Interstate expressly noted at the April 13 preliminary hearing its inability to properly defend against relators’ objections without knowing the specific part-petitions and signatures being challenged by relators. Contrary to relators’ claims, the R.C. 3501.39(A)(2) specificity provision did not require them to divulge their work product or their evidence; it required them only to specify which signatures out of over two thousand four hundred they were challenging and for what reasons. Relators did not so specify in their March 30 protest.

Therefore, relators did not comply with the R.C. 3501.39(A)(2) specificity requirement when they filed their March 30 protest, and they ultimately specified their objections twenty-four days later only when they were ordered to do so by the board.

Due to relators’ initial failure to comply with R.C. 3501.39(A)(2) and other conduct, relators’ claims are barred by laches. Extreme diligence and promptness are required in election matters. State ex rel. Bona v. Orange (1999), 85 Ohio St.3d 18, 20, 706 N.E.2d 771, 773. By failing to initially file specific objections on March 30, relators necessitated the board’s preliminary hearing on April 13 as well as the board’s April 15 request for specific objections, to which relators provided a response on April 23. Relators later refused to have their expert testify at the May 10 protest hearing and submitted supplemental evidence challenging additional signatures on May 10, which was sixty-nine days after relators photocopied the petition and forty-seven days after the city council transmitted copies of Ordinance No. 62-99 to the board.

By not promptly submitting a statutorily sufficient protest and by engaging in acts of gamesmanship that did not assist the board in its objective of expeditiously determining their challenges, relators commenced a sequence of dilatory actions that necessitated our order to impound the ballots for the special election. If relators had acted with the requisite diligence, they would have been able to file an expedited election case that could have been submitted to the court pursuant to the expedited election schedule of S.Ct.Prac.R. X(9) well before the June 1 special election. Instead, relators’ unjustified delaying tactics led to our impoundment order and resulted in prejudice to the electors of Avon. In fact, relators’ actions have now circumvented application of our general rule that “ ‘election cases are moot where the relief sought is to have a name or an issue placed on the ballot and the election was held before the case could be decided.’ ” Bona, 85 Ohio St.3d at 21, 706 N.E.2d at 773-774, quoting In re Protest Filed by Citizens for the Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 103, 551 N.E.2d 150, 151. Relators’ lack of diligence helped cause the late filing of this case, which rendered it impossible to have the parties’ evidence and briefs submitted under S.Ct.Prac.R. X(9) before the June 1 special election.

Relators contend that any delay was caused by the board’s failure to conduct a timely protest hearing. This contention is meritless. Any additional delay by the board in failing to hold a protest hearing does not excuse relators’ delay in the submission of a proper protest and the election process. State ex rel. Manos v. Delaware Cty. Bd. of Elections, 83 Ohio St.3d at 563, 701 N.E.2d at 372; State ex rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 493, 700 N.E.2d 1234, 1237. In fact, much of the board’s delay was directly attributable to relators’ actions.

Based on the foregoing, we deny the writ because of laches. Relators did not act with the requisite diligence in pursuing their protest to the initiative petition. Because relators’ action is meritless, we also rescind our previous impoundment order and order the board to publicly declare the June 1 special election results.³

Writ denied.

Moyer, C.J., F.E. Sweeney, Cook and Lundberg Stratton, JJ., concur. Douglas and Resnick, JJ., concur in judgment only. Pfeifer, J., concurs separately.

2 . Because respondents board, its members, and First Interstate also filed answers, their untimely motions to dismiss are actually Civ.R. 12(C) motions for judgment on the pleadings. Lee, 83 Ohio St.3d at 371, 700 N.E.2d at 7.

3 . Based on our holding, we need not address the remaining issues i'aised by the parties, and First Interstate’s motion in limine is moot. We also deny First Interstate’s motion for sanctions.