Election of Member of Rock Hill Bd. of Edn., In re

• Decision Date: 07 November 1995
• Citation: 669 N.E.2d 1116,76 Ohio St.3d 601
• Parties: , 112 Ed. Law Rep. 426 IN RE ELECTION of
• Court: Ohio Supreme Court

Page 601

76 Ohio St.3d 601

669 N.E.2d 1116, 112 Ed. Law Rep. 426

IN RE ELECTION of November 7, 1995 for the Office OF MEMBER OF ROCK HILL Local School District BOARD OF EDUCATION.

No. 96-136.

Supreme Court of Ohio.

Submitted June 25, 1996.

Decided Oct. 9, 1996.

This is an election-contest case which originated in the Court of Common Pleas of Lawrence County. The facts giving rise to this appeal are as follows.

On November 6, 1995, the day before the general election in Lawrence County, Ohio, Fred Blagg, a qualified voter, filed a petition with the Lawrence County Board of Elections challenging sixty ballots that had been cast by absentee voters. See R.C. 3505.20. Blagg alleged, among other things, that the absentee voters had received assistance in voting and that none of the challenged voters had marked the "assistance box" on his or her application for an absentee ballot. On November 15, 1995, the board of elections conducted a hearing to determine the validity of Blagg's challenges to the absentee ballots. Following the hearing, the board of elections, relying on R.C. 3509.05, voted not to count twenty-four of the sixty challenged ballots on the basis that the ballots had been mailed to the board of elections by persons other than the electors who had cast the ballots. ¹

On November 21, 1995, the board of elections met for the official canvassing of ballots. At this meeting, the board received a letter from the Chief Elections Counsel for the Secretary of State of Ohio addressing, among other things, the following question: "Is the ballot of an absentee voter disqualified because someone other than the voter mails the completed ballot and identification envelope to the board of elections?" The Chief Elections Counsel answered this question in the negative, stating that, "No where [sic ] in this section [R.C. 3509.05] does it provide that if someone other than the elector mails the ballot or a family member returns the ballot, that the ballot, if otherwise properly voted, is disqualified. * * * The error in mailing, if any, is technical under R.C. 3505.28 and the voter's ballot should be counted." However, despite this advice, the board of elections continued to adhere to its prior determination that R.C. 3509.05 required disqualification of the twenty-four ballots in question. On November 22, 1995, the board of elections certified the official results of the November 7, 1995 general election. In the race for the Office of Member of the Rock Hill Local School District Board of Education, the three declared winning candidates and their corresponding vote totals were Fred Wells (1,406 votes), Terry L. Barker (1,363 votes), and appellant Wanda Jenkins (1,255 votes). Jimmy Dale Massie, appellee, finished fourth in the race, just sixteen votes behind Jenkins.

On December 4, 1995, Massie filed, in the Court of Common Pleas of Lawrence County, a petition to contest the election. In his complaint, Massie alleged that the board of elections had abused its discretion in failing to count the twenty-four absentee ballots that had been rejected by the board on grounds that the ballots had been mailed by persons other than the electors who had cast the ballots. In the complaint, Massie also claimed that "[t]he day before the November 7, 1995 general election and prior to the close of regular business hours, five (5) individuals personally requested to vote absentee ballots at the office of the Board of Elections. The five gave as their reasons for voting absentee that they would be out of the county on election day. Two of the five were permitted to cast absentee ballots. The other three, namely William Perry, Alberta Wilds, and Kathy Bamer were not permitted [to] apply for or cast absentee ballots." In this regard, Massie alleged that the board of elections had abused its discretion in refusing to provide absent voter's ballots to the three electors who had been denied the right to vote.

On December 18, 1995, the trial court conducted an evidentiary hearing in the election contest action. On December 28, 1995, the trial court issued a decision and judgment entry upholding Massie's challenges to the election. With respect to the twenty-four absentee ballots that had been rejected by the board of elections, the trial court held that "[i]n light of the public policy favoring the counting of ballots, and the absence of statutory language in R.C. 3509.05 specifying that an elector must personally place his or her ballot in the mail back to the Board of Elections, it is my opinion that, under the facts of this case, that the twenty-four absentee ballots at issue must be counted." With respect to the three electors who had been refused absentee ballots at the board of elections' office the day before the general election (William Perry, Alberta Wilds, and Kathy Bamer), the trial court determined that the board of elections had improperly denied them the right to vote, stating that "[t]estimony presented at trial established that three electors who attempted to vote by absentee ballot at the Board of Elections' office the day before the election, before the close of regular business hours, were misinformed by the Board that they were not entitled to vote. * * * There is absolutely no question, but that these three electors were entitled to vote an absentee ballot." Accordingly, in its December 28, 1995 entry, the trial court ordered that Perry, Wilds and Bamer be allowed to cast absentee ballots in connection with the November 7, 1995 general election, that the board of elections count such ballots along with the twenty-four challenged absentee ballots, that the board combine the results of these votes with the previously certified results of the November 7 general election, and that the board "amend the abstracts of such election and issue new certificates of election in any election where the outcome changes." Additionally, the trial court ordered the board of elections to pay Massie $5,931 in attorney fees and expenses.

On January 10, 1996, the trial court ordered the board of elections to complete the counting of the absentee ballots and the certification of results no later than January 16, 1996. On January 16, the trial court conducted a hearing to address certain issues that had been raised by the board of elections concerning the manner in which the absentee ballots were to be counted. On January 17, 1996, Jenkins filed in this court a timely notice of appeal from the trial court's December 28, 1995 judgment entry. Jenkins's appeal was submitted directly to this court pursuant to R.C. 3515.15. ² Additionally, on January 18, 1996, the board of elections filed a notice of appeal in this court from the trial court's December 28, 1995 judgment entry. Thereafter, Massie moved to dismiss both appeals as untimely filed. On March 4, 1996, the trial court issued a judgment entry clarifying its orders of December 28, 1995 and January 10, 1996, by specifying, among other things, the precise manner in which the absentee ballots were to be counted and tallied. ³ On May 8, 1996, we granted Massie's motion to dismiss the board of elections' appeal, but denied the motion to dismiss Jenkins's appeal. See 75 Ohio St.3d 1475, 663 N.E.2d 1302. The cause is now before us on Jenkins's R.C. 3515.15 appeal from the trial court's December 28, 1995 judgment entry.

Craig A. Allen, Ironton, for appellant.

McTigue & Brooks and Donald J. McTigue, Columbus, for appellee.

DOUGLAS, Justice.

Jenkins presents a number of issues for our consideration. We have carefully reviewed Jenkins's arguments and have conducted a thorough review of the record. For the reasons that follow, we affirm the judgment of the trial court in all respects.

I

Massie filed this election contest action in the Court of Common Pleas of Lawrence County on December 4, 1995. On December 18, 1995, the trial court conducted a hearing on the petition. Thus, the hearing occurred just fourteen days after the action had been filed. In this regard, Jenkins suggests that the trial court failed to strictly comply with the requirements of R.C. 3515.10 and that, therefore, the court had no jurisdiction to hear and determine the election contest action. We disagree.

R.C. 3515.10 provides:

"The court with which a petition to contest an election is filed shall fix a suitable time for hearing such contest, which shall be not less than fifteen nor more than thirty days after the filing of the petition. * * * All parties may be represented by counsel and the hearing shall proceed at the time fixed, unless postponed by the judge hearing the case for good cause shown by either party by affidavit or unless the judge adjourns to another time, not more than thirty days thereafter, of which adjournment the parties interested shall take notice."

R.C. 3515.10 clearly contemplates that a hearing on a petition to contest an election will be conducted (except in certain circumstances such as in the case of an adjournment) not less than fifteen nor more than thirty days after the filing of the petition. Specifically, R.C. 3515.10 requires a trial court to fix a "suitable time" for hearing an election contest action and that the time set for trial shall not be less than fifteen nor more than thirty days after the filing of the petition to contest the election. In a series of prior cases, this court has held that the hearing scheduling requirements of R.C. 3515.10 are jurisdictional in nature. The leading cases on this issue are In re Contested Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 650 N.E.2d 859; McCall v. Eastern Local School Dist. Bd. of Edn. (1959), 169 Ohio St. 50, 8 O.O.2d 11, 157 N.E.2d 351; and Jenkins v. Hughes (1952), 157 Ohio St. 186, 47 O.O. 127, 105 N.E.2d 58.

However, each of these three cases dealt with a situation markedly different from the situation presented in the case at bar. Specifically, In re Contested Election, McCall and Jenkins, supra, each...