State ex rel. v. Summit Cty. Council

• Citation: 97 Ohio St.3d 204,777 N.E.2d 830,2002 Ohio 5583
• Decision Date: 21 October 2002
• Docket Number: No. 2002-1650.,2002-1650.
• Parties: The STATE ex rel. VICKERS et al. v. SUMMIT COUNTY COUNCIL et al.
• Court: United States State Supreme Court of Ohio

Page 830

777 N.E.2d 830

97 Ohio St.3d 204

2002 Ohio 5583

The STATE ex rel. VICKERS et al. v. SUMMIT COUNTY COUNCIL et al.

No. 2002-1650.

Supreme Court of Ohio.

Submitted October 15, 2002.

Decided October 21, 2002.

Chester, Wilcox & Saxbe, L.L.P., and Donald C. Brey, Columbus, for relators.

Benesch, Friedlander, Coplan & Aronoff, L.L.P., N. Victor Goodman, C. David Paragas, Jack Gregg Haught, Columbus, and Jennifer M. Turk, for respondents.

PER CURIAM.

{¶ 1} Relators, Kristina L. Vickers, Brian K. Hatfield, and Bryan C. Williams, are members of a committee formed to file a petition proposing an amendment to the Charter of Summit County, Ohio. The amendment would establish term limits for certain county offices. The petition contained the following election-falsification statement in boldface capital letters below the circulator statement: "THE PENALTY FOR ELECTION FALSIFICATION IS IMPRISONMENT FOR NOT MORE THAN SIX MONTHS OR A FINE OF NOT MORE THAN $1,000, OR BOTH."

{¶ 2} On September 5, 2002, relators submitted their petition to respondent Summit County Council. The petition consisted of 709 parts and contained 18,793 signatures. In the petition, relators did not specifically request that the proposed charter amendment be placed on the November 5, 2002 election ballot. When it received the petition, the county council sent the petition to respondent Summit County Board of Elections to determine whether the petition contained sufficient signatures.

{¶ 3} On September 11, 2002, the board of elections returned the petition to the county council. The board examined 15,678 of the 18,793 signatures and concluded that the petition contained 13,053 valid signatures, which exceeded the amount required by Section 4, Article X of the Ohio Constitution and Section 5.06 of the Summit County Charter for placement on the ballot. The board further noted that the petition did not contain the appropriate statutory election-falsification statement, but that the applicability of the statutory requirement to the charter amendment process might be in question. The petition contained an outdated election-falsification statement.

{¶ 4} The county council did not discuss the proposed charter amendment until its September 16, 2002 meeting, and it tabled the matter at a September 23, 2002 committee meeting.

{¶ 5} On September 25, 2002, relators filed a complaint in this court for a writ of mandamus to compel the county council to "forthwith by resolution submit the proposed charter amendment to the voters for decision" and to order the county council and the board of elections to "place the issue of whether or not to adopt the proposed charter amendment on the November 5, 2002, general election ballot." Respondents filed an answer, and the parties filed evidence and briefs pursuant to the expedited election schedule in S.Ct.Prac.R. X(9).

{¶ 6} This cause is now before the court on the merits.

{¶ 7} Relators seek a writ of mandamus to compel the county council and the board of elections to place the proposed charter amendment on the November 5, 2002 election ballot.

{¶ 8} Section 4, Article X of the Ohio Constitution provides for the submission of county charter amendments by the county legislative authority upon petition of eight percent of county electors:

{¶ 9} "The Legislative authority (which includes the Board of County Commissioners) of any county may by a twothirds vote of its members, or upon petition of eight per cent of the electors of the county as certified by the election authorities of the county shall forthwith, by resolution submit to the electors of the county the question, `Shall a county charter commission be chosen?' * * *

{¶ 10} "* * *

{¶ 11} "* * * Amendments to a county charter or the question of the repeal thereof may also be submitted to the electors of the county in the manner provided in this section for the submission of the question whether a charter commission shall be chosen, to be voted upon at the first general election occurring not sooner than sixty days after their submission."

{¶ 12} Relators contend that based upon Section 4, the county council should have passed a resolution by September 6, 2002, to submit the proposed amendment to county voters on the November 5, 2002 general election ballot.

Laches

{¶ 13} We have consistently required relators in election cases to act with the utmost diligence. State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 479, 764 N.E.2d 971. For election cases, laches is not an affirmative defense, and relators have the burden of proving that they acted with the requisite diligence. State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239 at 1126; State ex rel. Hills Communities, Inc. v. Clermont Cty. Bd. of Elections (2001), 91 Ohio St.3d 465, 467, 746 N.E.2d 1115.

{¶ 14} Relators did not satisfy their burden. They waited to file this action 19 days after September 6, 2002, which was the last date under Section 4, Article X of the Ohio Constitution for the county council to place the issue on the November 5, 2002 election ballot. See State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775 ("`we have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case'" [emphasis in Landis]).

{¶ 15} The facts here are similar to those in State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d 522, 524, 757 N.E.2d 307, and State ex rel. Valore v. Summit Cty. Bd. of Elections (1999), 87 Ohio St.3d 144, 718 N.E.2d 415. In Carberry, we denied a writ of mandamus to compel a city council to submit proposed charter amendments to the electorate on the November 2001 general election ballot because of laches. The relators in Carberry delayed 16 days from the city council's September 4 decision not to place the issues on the November 2001 ballot to file their mandamus action on September 20. 93 Ohio St.3d at 524, 757 N.E.2d 307.

{¶ 16} In Valore, the relator waited 16 days from a board's September 1 decision not to certify his candidacy on the November 1999 election ballot before he filed his mandamus action on September 17 to compel certification. 87 Ohio St.3d at 146, 718 N.E.2d 415. We denied the writ based on laches.

{¶ 17} Here, relators delayed 19 days from the final date (September 6) on which county council could have placed the proposed charter amendment on the ballot to file this mandamus action on September 25. There is no evidence of any excuse or justification for this delay.

{¶ 18} As we observed upon comparable facts in Carberry, 93 Ohio St.3d at 524, 757 N.E.2d 307, "[o]ur consistent requirement that expedited election cases be filed with the required promptness is not simply a technical nicety." The statutory deadline to have absentee ballots printed and ready for use was October 1, R.C. 3509.01, and that date passed before respondents filed their answer. If relators had acted more promptly, this might have been avoided and any potential prejudice to the county in its statutory obligation to absentee voters would have been minimized. Id.; Valore, 87 Ohio St.3d at 146, 718 N.E.2d at 415.

{¶ 19} By contrast, relators in two other election cases who sought placement of charter amendment issues on the November 5, 2002 ballot filed their cases on September 6, 2002, instead of waiting 19 more days. State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041; State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050.

{¶ 20} Therefore, we deny the writ because of laches insofar as relators request placement of the proposed charter amendment on the November 2002 election ballot.

Mandamus

{¶ 21} Moreover, even if laches did not apply and to the extent that relators' complaint could be construed to include a request for submission of the charter amendment at an election after November 5, 2002, relators are still not entitled to the writ.

{¶ 22} First, we have expressly refused to adopt a holding that "as long as a legally sufficient charter amendment petition is filed on or before the sixtieth day before the next scheduled election, * * * council has a duty to submit the issue to the electorate at that election." Instead, we held that "each case must be considered separately based on the particular facts involved. There may be circumstances where a charter amendment petition filed on the sixtieth day before the special election would not afford an adequate opportunity for council to determine the sufficiency of the petition and enact an ordinance on the same day." State ex rel. Commt. for the Charter Amendment Petition v. Avon (1998), 81 Ohio St.3d 590, 595, 693 N.E.2d 205.

{¶ 23} Relators did not file their petition with council until the next-to-last day before the constitutional deadline for the county council to pass a resolution placing the charter amendment issue on the November 5, 2002 election ballot, and the county council delivered the petition to the board of elections to verify the signatures on that same day. According to the clerk of the county council, this delivery was made without delay in order to facilitate timely action by the council. The board, however, did not transmit the petition back to the county council until after the deadline had passed. There is also no evidence that when they filed their petition on September 5, relators requested that county council act by September 6, 2002, to place the proposed charter amendment on the November 5, 2002 general election ballot. Even if relators acted with the requisite diligence and their petition was valid, the council had no duty to place the proposed charter amend...