815 N.E.2d 1107 (Ohio 2004), 2004-1445, State ex rel. Steele v. Morrissey

Docket Nº:2004-1445.
Citation:815 N.E.2d 1107, 103 Ohio St.3d 355, 2004-Ohio-4960
Opinion Judge:Per Curiam.
Party Name:The STATE ex rel. STEELE et al., v. MORRISSEY, Aud., et al.
Attorney:Hunter, Carnahan, Shoub & Byard, Russell E. Carnahan and Robert R. Byard, Columbus, for relators., Toni L. Eddy, Chillicothe Law Director, and James L. Mann, Assistant Law Director, for respondent Morrissey., Scott W. Nusbaum, Ross County Prosecuting Attorney, and Jason M. Miller, Assistant Prose...
Judge Panel:MOYER, C.J., RESNICK, FRANCIS E. SWEENEY, SR., LUNDBERG STRATTON, O'CONNOR and O'DONNELL, JJ., concur. PFEIFER, J., dissents.
Case Date:September 23, 2004
Court:Supreme Court of Ohio
 
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Page 1107

815 N.E.2d 1107 (Ohio 2004)

103 Ohio St.3d 355, 2004-Ohio-4960

The STATE ex rel. STEELE et al.,

v.

MORRISSEY, Aud., et al.

No. 2004-1445.

Supreme Court of Ohio

September 23, 2004.

        Submitted Sept. 15, 2004

Page 1108

        Hunter, Carnahan, Shoub & Byard, Russell E. Carnahan and Robert R. Byard, Columbus, for relators.

        Toni L. Eddy, Chillicothe Law Director, and James L. Mann, Assistant Law Director, for respondent Morrissey.

        Scott W. Nusbaum, Ross County Prosecuting Attorney, and Jason M. Miller, Assistant Prosecuting Attorney, for respondent Ross County Board of Elections.

         PER CURIAM.

        {¶ 1} Relators, Steve Steele, Mark Gray, and Joseph Minney, are electors of the city of Chillicothe, Ohio, who are members of a committee filing a petition proposing an

Page 1109

ordinance establishing minimum staffing levels in the Chillicothe Fire Department. On July 20, 2004, relators filed a precirculation copy of the initiative petition with respondent Chillicothe Auditor William D. Morrissey. The petition was presented on a form prescribed by the Secretary of State of Ohio and in accordance with the instructions of an employee of respondent Ross County Board of Elections.

        {¶ 2} The top of relators' petition contained a preprinted note that "[p]rior to circulation of an initiative petition proposing an ordinance or measure, a certified copy of such ordinance or measure must be filed with the City Auditor, Village Clerk or Township Clerk (home rule township)."

        {¶ 3} The form continued with the following, mostly preprinted statement with the appropriate blanks filled in:

        {¶ 4} "We, the undersigned, electors of the City of Chillicothe, Ohio respectfully propose to the electors of such city, village or township for their approval or rejection at the general election to be held on the 2[nd] day of November, 2004 the following Ordinance:

        {¶ 5} "The following is a full and correct copy of the title and text of the proposed Ordinance."

        {¶ 6} Thereafter, a copy of the title and text of the proposed ordinance establishing required staffing levels within the Chillicothe Fire Department was included.

        {¶ 7} Following the text of the proposed ordinance was the preprinted statement on the next page of the petition: "We hereby designate the following petitioners as a committee to be regarded as filing the petition or its circulation." Directly underneath this sentence were relators' printed names and addresses. There is no evidence establishing who printed relators' names and addresses. The precirculation copy of relators' initiative petition contained no signatures.

        {¶ 8} Relators circulated the initiative petition and collected signatures. On July 26, 2004, relators filed a petition containing over 1,000 signatures with Morrissey. On August 6, 2004, Morrissey transmitted the signed petition and the precirculation petition to the board of elections. On August 13, 2004, the board of elections notified Morrissey that the petition contained 770 valid signatures, which exceeded the required total of 622 valid signatures. The board returned the petition to Morrissey.

        {¶ 9} On August 16, 2004, Chillicothe Law Director, Toni L. Eddy, submitted her opinion to Morrissey that the petition was insufficient and invalid because the precirculation copy filed by relators with Morrissey on July 20, 2004, did not contain a certified copy of the proposed ordinance as required by R.C. 731.32. On August 18, 2004, Morrissey notified the board of elections and relators that he would not certify the initiative petition for placement on the ballot based on the law director's opinion.

        {¶ 10} On August 19, 2004, relators requested that the board of elections place the proposed ordinance on the November 2, 2004 general election ballot. The board of elections rejected relators' request.

        {¶ 11} On August 30, 2004, relators filed this expedited election case for a writ of mandamus to compel Morrissey to certify the sufficiency and validity of the initiative petition to the board of elections and to compel the board of elections to place the proposed ordinance on the November 2, 2004 general election ballot. Relators also request attorney fees and expenses. Respondents answered the complaint, and the parties filed evidence and briefs in accordance with the expedited schedule set forth in S.Ct.Prac.R. X(9).

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        Laches

         {¶ 12} Respondents claim that we cannot consider the merits of relators' mandamus claim because their claim is barred by laches. "Relators in election cases must exercise the utmost diligence." State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002,¶ 7. If relators do not act with the required promptness, laches may bar the action for extraordinary relief in an election-related matter. Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d 256, 2004, ¶ 14.

         {¶ 13} Relators waited 12 days from the date that Morrissey notified them that he would not certify the initiative petition to the board of elections for placement on the ballot to file this mandamus action on August 30. Respondents are correct that a delay as short as nine days can bar an election action based on laches. State ex rel. Vickers v. Summit Cty. Council, 97 Ohio St.3d 204, 2002, ¶ 14.

        {¶ 14} But cases in which laches is dispositive generally involve prejudice to the...

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