In re a Protest Filed With the Franklin County Board of Elections by Citizens for Merit Selection of Judges, Inc., on Behalf of Issue Iii, Merit Selection of Judges

• Decision Date: 07 June 1988
• Docket Number: 87AP-933,88-LW-1960
• Parties: In the Matter of a Protest filed with the Franklin County Board of Elections by CITIZENS FOR MERIT SELECTION OF JUDGES, INC., on behalf of Issue III, Merit Selection of Judges, (Franklin County Board of Elections, Petitioner-Appellant).
• Court: Ohio Court of Appeals

In the Matter of a Protest filed with the Franklin County Board of Elections by CITIZENS FOR MERIT SELECTION OF JUDGES, INC., on behalf of Issue III, Merit Selection of Judges, (Franklin County Board of Elections Petitioner-Appellant).

No. 87AP-933. Judgment reversed, 49 Ohio St. 3d 102 (1990).

88-LW-1960 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

June 7, 1988

Appeal from the Franklin County Common Pleas Court.

Michael Miller, Prosecuting Attorney, William B. Shimp, Harland H Hale and James P. McKenna, for appellant.

Lane Alton & Horst, and Jack R. Alton, for appellee.

OPINION

BROGAN Judge, Sitting by Assignment.

This appeal involves a special statutory action brought by the Franklin County Board of Elections pursuant to R.C. 3519.16 in the Common Pleas Court of Franklin County.

On August 3, 1987, appellee, Citizens for the Merit Selection of Judges, Inc. filed more than four hundred seventy-three thousand signatures with the Secretary of State in support of an initiative petition to amend the Ohio Constitution. The secretary, pursuant to R.C. 3915.15, transmitted the part petitions to the boards of election of the various counties.

Appellant, Franklin County Board of Elections, pursuant to R.C. 3501.11(K) reviewed the signatures and determined that thirty thousand four hundred forty of the seventy-two thousand one hundred twenty-nine signatures on the petitions were invalid. The appellee then submitted a written protest with the appellant pursuant to R.C. 3519.16.

The appellant then initiated a statutory proceeding pursuant to R.C. 3519.16 in the Franklin County Common Pleas Court. The parties stipulated that 52.83 percent of the disqualified signatures were invalid, specifically sixteen thousand eighty-two signatures. Five thousand two hundred seventeen signatures were validated.

In dispute were the remaining nine thousand two hundred seventy-eight signatures or 30.40 percent which were in the category designated "NRA" or "not registered at the address" appearing with the signature on the petition.

The trial court characterized the issue as, "[i]s a signature valid if the address on the petition is in Franklin County but not the address at which the signer resided when he or she registered with the Board of Elections?"

The trial court found the case law dealing with nominating petitions which refer and require voting residence do not apply to or control initiative petitions which, by the omission of the word "voting" in Section 1(9), Article II, Ohio Constitution, call for residence only.

The court found the initiative expression of the people was too important to the state to risk disenfranchisement of an election by reason of an unregistered change of address vis-a-vis the possibility of fraud by that elector. The court then ordered that the signatures on the initiative petition in the "NRA" category be determined valid. Judgment was so entered on September 17, 1987. A notice of appeal was filed from said judgment by the appellant on October 9, 1987. In the interim, sufficient signatures were verified by the various boards of election, and the Secretary of State caused the initiative petition to amend the Ohio Constitution (in respect to merit selection of certain judges) to be placed on the November 1987 general election ballot. The initiative to amend the constitution was defeated by the electorate.

The threshold issue before this court is whether the instant appeal is therefore moot.

Both parties to this appeal argue that the appeal should not be rendered moot because the 1987 general election which resulted in the defeat of the merit selection initiative has ended the parties' controversy.

Appellant argues that the legal issue before this court is a matter of great public importance. Appellant has characterized the issue as " * * * whether each signer of an initiative petition must be a qualified elector of the state and must place on such petition, after his name, the location of his voting residence. * * *"

Appellant contends that the resolution of this issue is vital because what is at stake is the integrity of the initiative process. Appellant contends that were all issues concerning the validity of the initiative petition signatures declared moot upon the occurrence of the election, such issues would evade judicial review. Appellant also argues that this issue is capable of repetition and will, because of the short time frame attendant to the election process, evade judicial review.

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; State, ex rel. Santora, v. Board of Elections of Cuyahoga County (1962), 174 Ohio St. 11; State, ex rel. Keller, v. Loney (1959), 169 Ohio St. 394. These cases relied on Miner v. Witt (1910), 82 Ohio St. 237, which in turn relied on Mills v. Green (1895), 159 U.S. 651.

In Foster v. Bd. of Elections (1977), 53 Ohio App.2d 213, the Cuyahoga County Court of Appeals held 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.

Judge Jackson distinguished the earlier Ohio Supreme Court cases on mootness involving election issues:

"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, 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:

" "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 US 752, 756 n 5, 36 L Ed 2d 1, 93 S Ct 1245 (1973); Dunn v. Blumstein, 405 US 330, 333 n 2, 31 L Ed 2d 274, 92 S Ct 995 (1972); Moore v. Ogilvie, 394 US 814, 816, 23 L.Ed.2d 1, 89 S.Ct. 1493 (1969); Southern Pacific Terminal Co. v. ICC, 219 US 498, 515, 55 L Ed 310, 31 S Ct 279 (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." Id. at 217-218.

In State, ex rel. The Repository, v. Unger (1986), 28 Ohio St.3d 418, in a prohibition action involving the closure by a court of certain pretrial hearings, the Supreme Court of Ohio noted in a PER CURIAM opinion:

"We also note that jurisdiction is not defeated because the orders which are the subject of this action have terminated. Court hearings and trials are generally of short duration. A courtroom closure order issued in connection with a hearing or trial will normally expire before an appellate court can decide its validity. Yet, it can reasonably be assumed that appellee will be subject to a similar closure order in the future. Press-Enterprise Co. v. Superior Court (1986), 478 U.S. ---, 92 L.Ed.2d 1, at 9. Therefore, this case is not moot since these issues are "capable of repetition, yet evading review.' Id. See, also, Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 602-603; State, ex rel. Beacon Journal Pub. Co., v. Kainrad (1976), 46 Ohio St.2d 349, 351 ; Foster v. Bd. of Elections (1977), 53 Ohio App.2d 213, 217 ." Id. at 419-420.

Appellee has cited us to a decision by a Summit County Common Pleas Court which held that an elector otherwise qualified whose name appears upon the permanent registration list may sign a petition for initiative or referendum, although at the time he or she has not transferred his registration on the permanent lists. See Summit County Board of Elections v. Citizens for the Selection of Judges (Sept. 11, 1987), Summit County Court of Common Pleas Case No. CV-87-09-3100, unreported. The appellant cites us to the decision of a common pleas court in Montgomery County wherein the court held that one who has registered to vote, but moves beyond his precinct boundaries without informing the Board of Elections shall not be considered an "elector" under Section 1(g), Article II, Ohio Constitution, and the Board of Elections properly invalidated signatures in that position. See Montgomery County Board of...