Contested Election of November 2, 1993, In re

• Citation: 650 N.E.2d 859,72 Ohio St.3d 411
• Parties: In re CONTESTED ELECTION OF
• Decision Date: 02 November 1993
• Court: United States State Supreme Court of Ohio

Page 411

72 Ohio St.3d 411

650 N.E.2d 859

In re CONTESTED ELECTION OF NOVEMBER 2, 1993 CONCERNING ISSUE NO. 9, REFERENDUM OF ORDINANCE NO. 137-92, CITY OF AVON.

No. 94-1662.

Supreme Court of Ohio.

Submitted May 9, 1995.

Decided July 5, 1995.

On January 25, 1993, appellee, Avon City Council, the legislative authority for appellee, city of Avon, passed Ordinance No. 137-92, which reduced the resident income-tax credit for income taxes paid to another municipality from one hundred percent to fifty percent, effective April 1, 1993. Following the receipt of a referendum petition which proposed repealing Ordinance No. 137-92, council passed Ordinance No. 58-93 on June 14, 1993, submitting the referendum issue to the Lorain County Board of Elections for placement on the November 2, 1993 ballot. The referendum issue, known as Issue 9 on the ballot, was posted in five locations throughout Avon and was publicized in local newspapers.

Issue 9, taken from Ordinance No. 58-93, provided:

"Shall Ordinance No. 137-92, which amends Ordinance 53-82, as codified in Section 880.9(A) of the Avon Codified Ordinances, which provides for an amendment of the municipal income tax credit of a resident of the City having income taxable in another municipality from 100% to 50% of the amount obtained by multiplying the lower of the tax rate of such other municipality or of the City by the taxable income earned or attributable to the municipality or of the City by the taxable income earned or attributable to the municipality of employment or business activity be repealed?"

On November 17, 1993, the board of elections certified that Issue 9 had failed by a margin of 1,449 to 1,288. From the date the ordinance enabling Issue 9 to be placed on the November 2, 1993 ballot was passed until after the election, appellees received no comment or complaint regarding the ballot language.

On December 2, 1993, appellants, several electors who had voted on Issue 9 at the November 2, 1993 election, filed a complaint in the Lorain County Court of Common Pleas contesting the Issue 9 election result. Appellants claimed that (1) the ballot language of Issue 9 had misled and confused electors, (2) the full text of Issue 9 was not posted at each polling place, (3) absentee ballots were not properly counted, (4) ballots were wrongfully excluded from being counted, and (5) other unspecified irregularities in the conduct of the election occurred. Appellants further claimed that the defective ballot language, improper posting, and other election irregularities resulted in the rejection of Issue 9. Appellants requested that the election as to Issue 9 be set aside and that Issue 9 be declared to have passed.

On December 15, 1993, appellees filed an answer, which raised the affirmative defenses of laches and estoppel. On the same date, appellees filed a motion to dismiss, or alternatively, a motion for summary judgment based on their contention that appellants were estopped from bringing an election contest. On January 20, 1994, appellants filed a motion for summary judgment on their claim that the ballot language of Issue 9 was defective.

A hearing on the motions was continued from February 17, 1994 to March 11, 1994, on agreement of the parties. On March 8 and 9, 1994, appellants filed motions for summary judgment on the defective posting and ballot language issues, and further moved to continue the scheduled hearing to allow appellees time to respond to their new motions. The court rescheduled the case for hearing on all the motions for sometime after May 3, 1994.

On March 31, 1994, appellees filed a motion to dismiss the matter on the basis that the procedure specified in R.C. 3515.10 had not been followed. On May 6, 1994, appellants requested that the court set a final hearing date once all outstanding motions had been ruled upon. On July 14, 1994, the court determined that there was no genuine issue of material fact and granted appellees' December 15, 1993 motion to dismiss, or alternatively, motion for summary judgment, thereby dismissing the case with prejudice.

Appellants filed a notice of appeal from the common pleas court to this court pursuant to R.C. 3515.15, which provides:

"The person against whom judgment is rendered in a contest of election may appeal on questions of law, within twenty days, to the supreme court * * *. * * * The laws and rules of the court governing appeals apply in the appeal of contested election cases. * * *"

This court previously held that R.C. 3515.15 does not authorize election contest appeals as a matter of right to this court. Modarelli v. Carney (1978), 56 Ohio St.2d 67, 10 O.O.3d 142, 381 N.E.2d 1128; Foraker v. Perry Twp. Rural School Dist. Bd. of Edn. (1935), 130 Ohio St. 243, 4 O.O. 264, 199 N.E. 74. These cases were premised on G.C. 12251 and, later, R.C. 2505.29, which provided appeals to this court by leave. R.C. 2505.29 was repealed in 1987. In Portis v. Summit Cty. Bd. of Elections (1993), 67 Ohio St.3d 590, 621 N.E.2d 1202, the court treated an appeal of an election contest from a common pleas court as an appeal as of right. The Supreme Court Rules of Practice do not expressly address this type of appeal. On November 23, 1994, this court ordered the transmission of the common pleas court record and the filing of briefs, effectively treating the instant appeal as one of right.

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

Russell T. McLaughlin, for appellees.

PER CURIAM.

As a preliminary matter, appellants have moved to strike appellees' brief because it contains matters in its appendix which are not part of the record. Appellees concede that their brief contains documents which are not in the record. It is axiomatic that a reviewing court cannot add matter to the record before it, which was not part of the trial court's proceedings. State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus; State v. Davis (1992), 63 Ohio St.3d 44, 46, 584 N.E.2d 1192, 1195, fn. 2. Therefore, appellants' motion is granted in part, and those portions of the appendix in appellees' brief which constitute new matter are stricken and are not considered in the resolution of this appeal.

In considering the merits of this appeal, in Ohio a contestor of an election must establish by clear and convincing evidence (1) that one or more election irregularities occurred, and (2) that the irregularity or irregularities affected enough votes to change or make uncertain the result of the election. McMillan v. Ashtabula Cty. Bd. of Elections (1993), 68 Ohio St.3d 31, 34, 623 N.E.2d 43, 46. The common pleas court's dismissal was premised on appellees' December 15, 1993 motion to dismiss, or alternatively, motion for summary judgment. Appellees' motion was based solely on their contention that appellants were estopped from asserting an election contest because they were or should have been fully aware of the proposed Issue 9 ballot language when the enabling ordinance was passed on June 14, 1993.

Extreme diligence and promptness are required in election-related matters. State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 49, 600 N.E.2d 656, 659. Equitable estoppel precludes recovery when "one party induces another to believe certain facts exist and the other party changes his position in reasonable reliance on those facts to his detriment." State ex rel. Chavis v....