State ex rel. v. Cty. Bd. of Elections

Citation96 Ohio St.3d 308,2002 Ohio 4194,774 N.E.2d 239
Decision Date16 August 2002
Docket NumberNo. 2002-0524.,2002-0524.
PartiesThe STATE ex rel. COMMITTEE FOR THE REFERENDUM OF CITY OF LORAIN ORDINANCE NO. 77-01 v. LORAIN COUNTY BOARD OF ELECTIONS et al.
CourtUnited States State Supreme Court of Ohio

Phillips & Co., L.P.A., and Gerald W. Phillips, for relator.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondent Lorain County Board of Elections.

Riley, Resar & Associates, P.L.L., and Kenneth R. Resar, Lorain, for intervening respondent Thomas Oster.

PER CURIAM.

{¶ 1} On June 7, 2001, the Council of the city of Lorain, Ohio, enacted Ordinance No. 77-01, which reclassified approximately 202.7 acres of land located off Jaeger Road in Lorain from R-1A "Residential" to R-PUD "Residential Planned Unit Development." Relator, Committee for the Referendum of Ordinance No. 77-01, Citizens for a Better Lorain, circulated a referendum petition requesting that Ordinance No. 77-01 be submitted to Lorain voters at the November 6, 2001 general election. Denver Casto is the chairman of the committee. Casto circulated certain part-petitions for the referendum, including Part Petition No. 23.

{¶ 2} On July 6, 2001, the committee filed the referendum petition with the Lorain Auditor. The petition consisted of 71 part-petitions and contained 2,025 signatures. On July 17, 2001, the city auditor submitted the petition to respondent Lorain County Board of Elections to certify the number of valid signatures in the petition. On July 25, 2001, the board certified that the petition contained 1,584 valid signatures, which exceeded the 1,562 valid signatures needed to place the referendum on Ordinance No. 77-01 on the November 6, 2001 election ballot.

{¶ 3} Shortly before the city auditor certified the sufficiency of the petition, on August 6, 2001, intervening respondent, Thomas Oster, and Evelyn Oster, taxpayers and resident electors of Lorain, submitted a written protest to the board challenging the referendum petition and the board's July 25, 2001 determination that the petition contained 1,584 valid signatures. Thomas and Evelyn Oster are owners and officers of Oster Construction, Inc., a corporation engaged in the business of real estate development, construction, and sales. The corporation owns a portion of the real property rezoned by Ordinance No. 77-01 and has entered into a contract to purchase the rest of the rezoned property.

{¶ 4} In their August 6, 2001 protest, the Osters contested the validity of three categories of signatures contained in the referendum petition: (1) the signatures of individuals who signed the petition when they were not registered electors; (2) the signatures on part-petitions circulated by individuals who were not registered electors at the time they circulated them; and (3) the signatures on those part-petitions in which the circulators knew that one or more individuals signing the petition were not registered electors at the time they signed.

{¶ 5} On August 30, 2001, the board held a hearing on the Osters' August 6 protest and denied the protest. On the previous day, Thomas Oster had learned that one of the signers of Part Petition No. 23 of the referendum petition had signed the petition, but Casto, the purported circulator of the part-petition, had not presented the petition to her or witnessed her signature. Oster's counsel contacted the board's attorney, who stated that the board would probably permit him to introduce this new evidence at the August 30 protest hearing. The board, however, decided not to consider Oster's new claims because they had not been the subject of any written protest. Oster proffered Graff's affidavit as well as the affidavits of four signers and prospective signers, stating that Casto and another circulator, John Franko, had made false and misleading statements to them concerning the effect of Ordinance No. 77-01.

{¶ 6} We ultimately upheld the board's denial of the Osters' August 6, 2001 protest by denying the writ of prohibition requested by the Osters to prevent the board and Lorain from proceeding with the November 6, 2001 referendum election on Ordinance No. 77-01. State ex rel. Oster v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 480, 756 N.E.2d 649.

{¶ 7} On September 13, 2001, Thomas Oster ("Oster") filed a second written protest with the board of elections against the referendum petition. In this protest, Oster raised the claims that he had previously tried to raise at the August 30 board hearing on his first protest. Oster asserted that Casto and Franko had engaged in a pattern of making false and misleading statements to prospective signers in violation of R.C. 3599.14, and that Casto falsely swore that he had witnessed the affixing of every signature on Part Petition No. 23, thereby violating R.C. 3501.38(E). Attached to Oster's September 13 protest were the five affidavits he had previously proffered to the board at the August 30 hearing. Graff specified in her affidavit that she had signed Part Petition No. 23, that it had been presented to her by two women, and that Casto had never presented the petition to her. In Part Petition No. 23, Casto had declared under penalty of falsification that he had circulated the petition and that he had witnessed the affixing of every signature.

{¶ 8} On September 24, 2001, Oster submitted three additional affidavits to the board in support of his September 13, 2001 protest. In these affidavits, three additional signers of Part Petition No. 23 reiterated Graff's sworn statement that the part-petition had been presented to them by women rather than Casto and that Casto had never witnessed their signatures.

{¶ 9} At the board's September 24, 2001 meeting, it considered whether it should schedule a full evidentiary hearing on Oster's September 13 protest. At the meeting, a board member expressed concern about allowing more than one protest for referendum petitions. The board subsequently decided that in lieu of an evidentiary hearing on the September 13 protest, it would permit Casto to provide an affidavit acceptable to the board's counsel by September 27, 2001, reaffirming that he witnessed all signatures on the part-petition he circulated. If Casto failed to file the affidavit by September 27, the board would immediately set a hearing on Oster's September 13 protest.

{¶ 10} On September 27, 2001, the committee provided the board with the requested affidavit. In his affidavit, Casto stated that he had circulated Part Petition 23, that he had witnessed the affixing of every signature, and that all of the signatures on the part-petition had been signed in his presence. The board conducted no further hearings or investigations on the September 13 protest before the November 6, 2001 election.

{¶ 11} On October 9, 2001, Oster filed a complaint in the Lorain County Court of Common Pleas for a writ of prohibition to prevent the board and Lorain from submitting the referendum on Ordinance No. 77-01 to Lorain electors at the November 6, 2001 general election. Oster also requested a preliminary injunction. On October 18, 2001, Oster filed an amended complaint in the common pleas court in which he added claims for a declaratory judgment that he was entitled to a hearing before the board on his September 13, 2001 protest and a writ of mandamus to compel the board to hold a hearing on his September 13 protest. The common pleas court granted the committee's motion to intervene as a respondent.

{¶ 12} On October 19, 2001, Judge Edward M. Zaleski of the common pleas court held a hearing on Oster's motion for a preliminary injunction. At the hearing, numerous witnesses testified that Casto, the purported circulator of Part Petition Nos. 23 and 26, did not present the petition to them and did not witness their signatures. In addition, affidavits of various petition signers reiterated, in effect, that Casto had lied about circulating these part-petitions and witnessing the signatures contained therein. In an October 17, 2001 deposition, Casto refuted the testimony of these witnesses by specifying that he had circulated Part Petition No. 23 and that he had witnessed every signature on that part-petition. Casto invoked his Fifth Amendment privilege against self-incrimination in refusing to answer questions concerning statements he made to prospective signers.

{¶ 13} On November 1, 2001, Judge Zaleski continued the hearing on Oster's motion for a preliminary injunction and prohibited the board "from announcing and/or certifying the election results on the Referendum for the City of Lorain Ordinance No. 77-01, now also known as City of Lorain Issue No. 8 until there is a final adjudication of the herein action or a modification of this order." Judge Zaleski also ordered that "[a]ll information and reports setting forth the outcome on the election on Issue No. 8 shall be sealed by the Board pending the final adjudication of the herein action." The November 1 common pleas court order was agreed to by the committee, the board, and Oster, and was signed by their respective counsel.

{¶ 14} On November 6, 2001, the election of the referendum was held, but because of the agreed order entered by the common pleas court, the result was sealed and was not announced or certified. On December 7, 2001, Judge Zaleski recused himself due to a possible conflict of interest, and the case was assigned to Judge Kosma J. Glavas.

{¶ 15} On December 20, 2001, Judge Glavas ordered the board to conduct a full and complete hearing on Oster's September 13, 2001 protest. Judge Glavas denied the claims of the board, committee, and city that laches on the part of Oster barred his action. Judge Glavas also prohibited the board from announcing and certifying the November 6, 2001 election result on the referendum.

{¶ 16} On January 23, 2002, however, Judge Glavas vacated his ...

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