Foster v. Cuyahoga County Bd. of Elections

• Decision Date: 25 August 1977
• Citation: 373 N.E.2d 1274,7 O.O.3d 282,53 Ohio App.2d 213
• Parties: , 7 O.O.3d 282 FOSTER, Appellee, v. CUYAHOGA COUNTY BOARD OF ELECTIONS, Russo, Appellant.
• Court: Ohio Court of Appeals

Page 213

53 Ohio App.2d 213

373 N.E.2d 1274, 7 O.O.3d 282

FOSTER, Appellee, v. CUYAHOGA COUNTY BOARD OF ELECTIONS, Russo, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 25, 1977.

Syllabus by the Court

1. An election case is not moot even though no effective relief can be provided to a candidate or voter because the election has passed where the issues will persist and are likely to evade adequate review in the future because of the inherent time limitations in election controversies. The effect of construing the challenged statute and setting forth any constitutional limitations thereupon will be to simplify future controversies under that statute. By simplifying future controversies there is an increased likelihood that effective relief can be provided to a candidate or voter in those future controversies. Accord, Storer v. Brown, (1974), 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714.

2. Where there is no provision in any state statute or in any local rule for a protest procedure before the board of elections to challenge the validity of a write-in candidacy, the initial approval or disapproval by the board is final absent allegations of fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. R.C. 3513.041.

3. The class of persons who may challenge the validity of a candidacy includes electors for the office sought.

4. The doctrine of laches requires in election cases that the complainant demonstrate extreme diligence in prosecuting the action. Where the complainant, with notice of a decision by the board of elections, delays twenty-five days in filing an action seeking a temporary restraining order and a mandatory injunction, the action being filed only eleven days prior to the election, the complainant is barred by the doctrine of laches from obtaining the relief sought.

5. Pursuant to R.C. 3513.04, any person who seeks any public office or position at a party primary election by declaration of candidacy is prohibited from becoming a candidate for any public office by nominating petition or by write-in at the following general election.

6. Appellate Rule 12(A) provides that any errors not separately argued by brief may be disregarded. Appellate Rule 16(A)(4) requires that the brief contain an argument and that the argument include the contentions of the appellant and the reasons for his conclusion with citations to the appropriate authorities and to the parts of the record relied on. At a minimum, where a statute is argued to be unconstitutional, the party must cite which section of the Constitution he contends is in conflict with the statute, and he must state his reasons for his conclusion that the statute is unconstitutional. Absent this minimum compliance with the appellate rules, the assigned constitutional error may be disregarded.

7. The limitations on candidacy set forth in R.C. 3513.04 do not conflict with rights protected by the First or Fourteenth Amendments to the United States Constitution.

Reminger & Reminger and William P. Farrall, Cleveland, for appellee.

Daniel M. Roth, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., for the Cuyahoga County Bd. of Elections.

JACKSON, Judge.

On October 22, 1976, plaintiff appellee Coleman Foster filed an action seeking a temporary restraining order and a mandatory injunction to enjoin defendant appellant Basil Russo from pursuing the office of Sheriff of Cuyahoga County as a write-in candidate in the November 2, 1976 general election and to enjoin defendant Cuyahoga County Board of Elections from permitting the candidacy of appellant as a write-in candidate for sheriff in the November 2, 1976 general election.

In his complaint the appellee averred that he and appellant were both write-in candidates for sheriff; that appellant had been an unsuccessful candidate for the Congress of the United States in the Democratic Primary on June 8, 1976; and that appellant's application with the board of elections to be a write-in candidate for sheriff was unanimously approved by the board of elections on or about September 27, 1976. Appellant Russo admitted the above averments in his answer. ¹

According to the record the following is a chronology of events culminating in the filing of an appeal with this court:

On October 29, 1976, appellant filed a motion to dismiss the complaint by appellee; the trial court issued a mandatory injunction which enjoined the board of elections from permitting appellant to run as a write-in candidate for sheriff and appellant from running for the office; and appellant filed a notice of appeal and a motion for stay of the injunction by trial court pending appeal. ²

On November 1, 1976, this court granted appellant's motion to stay the injunction and ordered the board of elections to count and impound all ballots cast for the appellant. This court further set forth a schedule for the preparation and filing of papers requisite to the appeal.

On November 10, 1976, subsequent to the general election, appellant filed a motion with this court to dismiss his appeal. Appellant's motion to dismiss was overruled. Appellant assigns four errors on appeal:

"1. The trial court erred in failing to grant appellant-defendant's motion to dismiss the complaint.

"2. The trial court erred in failing to apply the doctrines of laches and estoppel and in holding that the appellee-plaintiff was not barred from obtaining extraordinary equitable relief in the form of a mandatory injunction.

"3. The trial court erred in holding that Ohio Rev. Code § 3513.04 bars a party primary candidate for federal office from seeking a county office by write-in vote in the general election.

"4. The trial court erred in upholding the constitutionality of Ohio Rev. Code § 3513.04 under the Ohio and Federal Constitutions."

The following arguments are advanced by appellant in his first assigned error:

"A. A court of Common Pleas lacks subject matter jurisdiction of an election dispute because the decisions of the Board of Elections are final in the absence of fraud, corruption and the like

"B. Plaintiff lacked standing to bring the action because (1) he had not alleged any legal right of his which would be damaged and (2) he failed to take an administrative appeal from the decision of the Board of Elections

"(1) Injunctions do not issue to protect abstractions but only legal rights which are being irreparably damaged

"(2) Plaintiff lacked standing to obtain an injunction by reason of his failure to take a timely appeal from an administrative proceeding

"C. The complaint of plaintiff fails to state a claim upon which relief can be granted "

Before considering the errors assigned by appellant, the ultimate disposition of the issues herein requires this court to address the question of mootness.

The Ohio Supreme Court has regularly found election cases to be moot where the relief sought by the plaintiff was to have his name placed on the ballot and the election was held before the case could be decided. State ex rel. Gyurcik v. Brown (1964), 176 Ohio St. 288, 199 N.E.2d 596; State ex rel. Santora v. Board of Elections of Cuyahoga county (1962), 174 Ohio St. 11, 185 N.E.2d 438; State ex rel. Patrick v. Board of Elections of Cuyahoga County (1962), 174 Ohio St. 12, 185 N.E.2d 433; State ex rel. Keller v. Loney (1959), 169 Ohio St. 394, 159 N.E.2d 896. These cases seemed to have ultimately relied on Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, which in turn relied on Mills v. Green (1895), 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293. In Miner, the court stated in its syllabus:

"It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs, without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error."

Neither Miner nor any of the above cited election cases considered a federally recognized exception to the general application of mootness, the exception being the doctrine of "capable of repetition, yet evading review." In Storer v. Brown (1974), 415 U.S. 724, 737, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714, the United States Supreme Court considered a constitutional attack on a California statute similar in effect to R.C. 3513.04. In finding the case not to be moot, the Court stated in note 8:

"8. The 1972 election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot, since the issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied in future elections. This is, therefore, a case where the controversy is 'capable of repetition, yet evading review,' Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The 'capable of repetition, yet evading review' doctrine, in the context of election cases, is appropriate when there are 'as applied' challenges as well as in the more typical case involving only facial attacks. The construction of the statute, an understanding of its operation and possible constitutional limits on its application will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held."

Because Miner seemingly relied on federal doctrine and because none of the reported Ohio cases have rejected the doctrine of "capable of repetition, yet evading review," we will follow the reasoning by the Court in Storer and dispose of this case on the merits.

In assignment of error No. 1 the first argument advanced by appellant charges that the trial court...