804 N.E.2d 419 (Ohio 2004), 2004-0263, Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff

• Citation: 804 N.E.2d 419, 101 Ohio St.3d 256, 2004-Ohio-812
• Opinion Judge: Per Curiam.
• Party Name: CAMPAIGN TO ELECT LARRY CARVER SHERIFF et al. v. CAMPAIGN TO ELECT ANTHONY STANKIEWICZ SHERIFF et al.
• Attorney: Mark Steven Colucci, Youngstown, for relators. Mark Steven Colucci, for relators. Linnen Co., L.P.A., and Jerome T. Linnen Jr., for respondents Anthony Stankiewicz and Campaign to Elect Anthony Stankiewicz Sheriff.
• Judge Panel: MOYER, C.J., RESNICK, FRANCIS E. SWEENEY, SR., LUNDBERG STRATTON, O'CONNOR and O'DONNELL, JJ., concur. PFEIFER, J., concurring in judgment only.
• Case Date: February 23, 2004
• Court: Ohio Supreme Court

Page 419

804 N.E.2d 419 (Ohio 2004)

101 Ohio St.3d 256, 2004-Ohio-812

CAMPAIGN TO ELECT LARRY CARVER SHERIFF et al.

v.

CAMPAIGN TO ELECT ANTHONY STANKIEWICZ SHERIFF et al.

No. 2004-0263.

Supreme Court of Ohio

February 23, 2004.

Submitted Feb. 20, 2004.

Mark Steven Colucci, Youngstown, for relators.

Linnen Co., L.P.A., and Jerome T. Linnen Jr., Akron, for respondents Anthony Stankiewicz and Campaign to Elect Anthony Stankiewicz Sheriff.

PER CURIAM.

{¶ 1} Relator Larry Carver and respondent Anthony Stankiewicz are candidates for the office of Sheriff of Portage County, Ohio, at the March 2, 2004 primary election.

Page 420

R.C. 311.01(B)(9) requires an elected sheriff either to meet certain academic criteria or to have "at least two years of supervisory experience as a peace officer at the rank of corporal or above." In assessing Stankiewicz's [101 Ohio St.3d 257] qualifications to be a candidate for sheriff, the Portage County Board of Elections requested that Stankiewicz provide an outline of his duties as Chief Security Officer and Bailiff for the Portage County Court of Common Pleas, Domestic Relations Division. On January 5, 2004, Judge Joseph R. Kainrad and Judge John A. Enlow of the common pleas court filed with the board of elections an outline of those duties. Based on this additional evidence, the board approved Stankiewicz as a qualified sheriff's candidate.

{¶ 2} On January 13, 2004, Carver submitted a written protest to the board of elections against the candidacy of Stankiewicz and another person for county sheriff. Carver claimed that the board should vacate its approval of Stankiewicz's candidacy because Stankiewicz's supervisory experience with the state did not meet the statutory requirements. Furthermore, he claimed that the judges' letters describing Stankiewicz's duties resulted in "an apparent conflict of interest under Ohio law in that it appears that the judiciary is appointing or certifying the candidacy of its employee, Mr. Stankiewicz." Carver further contended that Stankiewicz did "not meet the spirit or letter of the qualifications regarding 'Peace Officer Status' based upon the [evidence in his protest] and other evidence that will be presented at hearing."

{¶ 3} On January 28, 2004, the board held a hearing on Carver's protest and issued a decision denying the protest and upholding Stankiewicz's candidacy that same day. On January 31, Carver received the board's decision.

{¶ 4} On February 6, 2004, relators, Carver and the Campaign to Elect Larry Carver Sheriff, filed this expedited election action for a writ of prohibition to prevent Stankiewicz from participating as a candidate for Portage County Sheriff at the March 2, 2004 primary election. Relators named only Stankiewicz and the Campaign to Elect Anthony Stankiewicz Sheriff as respondents. Respondents did not file a timely response to relators' original complaint. On February 19, 2004, i.e., 19 days after receiving the board's decision denying their protest, relators filed a motion to amend their complaint to add the board of elections as a respondent. On that same day, respondents Stankiewicz and Campaign to Elect Stankiewicz Sheriff filed a motion to dismiss.

{¶ 5} This cause is now before the court for our consideration of relators' motion to amend their original complaint. In addition, because it is now unlikely that the S.Ct.Prac.R. X(9) schedule for the presentation of evidence and briefs in expedited election matters will be completed before the March 2, 2004 primary election, this cause is also before the court for our consideration of the merits.

Motion to Amend

{¶ 6} Relators move to amend this complaint to add the board of elections as a respondent. Under S.Ct.Prac.R. X(2), as limited by S.Ct.Prac.R. X(1), original actions other than habeas corpus filed in this court "shall proceed under the Ohio Rules of Civil Procedure, unless clearly inapplicable." See Hughes v. Calabrese, 95 Ohio St.3d 334, 767 N.E.2d 725,¶ 13. We have applied Civ.R. 15(A) in expedited election cases on motions to amend complaints. State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002, ¶ 26.

{¶ 7} Civ.R. 15(A) permits a party to amend its pleading "once as a matter of

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course at any time before a responsive pleading is served." Under S.Ct.Prac.R. X(5), an answer, a motion to dismiss, or a motion for judgment on the pleadings constitutes a "responsive pleading." State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 631, 716 N.E.2d 704. Because the original respondents did not file any responsive pleading within the time set forth in expedited election matters under S.Ct.Prac.R. X(9), relators are entitled to amend their pleading to add the board of elections as a respondent without leave of court or written consent of respondents. Civ.R. 15(A); State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 549, 605 N.E.2d 378.

{¶ 8} Therefore, relators' complaint was amended as of right under Civ.R. 15(A), and we need not rule on their motion.

Prohibition: Stankiewicz and Campaign to Elect Anthony Stankiewicz Sheriff

{¶ 9} Relators request a writ of prohibition seeking the removal of Stankiewicz as a candidate for Portage County Sheriff at the March 2, 2004 primary election. In order to be entitled to the requested writ of prohibition, relators must establish that (1) respondents are about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will...