State ex rel. Ascani v. Stark Cty. Bd. of Elections

Decision Date15 October 1998
Docket NumberNo. 98-1914,98-1914
Citation83 Ohio St.3d 490,700 N.E.2d 1234
PartiesThe STATE ex rel. ASCANI et al. v. STARK COUNTY BOARD OF ELECTIONS et al.
CourtOhio Supreme Court

Northfield Park Associates ("Northfield Park"), an Ohio general partnership, owns and operates a standardbred horseracing track in Northfield, Ohio. Northfield Park established Canton OTB, Ltd. ("Canton OTB"), an Ohio limited liability company, to operate an R.C. 3769.25(E) satellite facility. 1 On March 16, 1998, after Canton OTB requested that intervening relator, city of Canton, approve its application to open and operate a satellite facility in the city, the Canton City Council passed an emergency ordinance approving the application subject to the further approval of the Ohio State Racing Commission. The Canton Mayor approved the ordinance on March 17.

Shortly thereafter, according to published articles of The Canton Repository newspaper, respondent Stark County Elections Board Member Charles E. Brown, in his capacity as Stark County Republican Party Chairman, spearheaded a drive to circulate an initiative petition to submit the issue of a satellite facility in Canton to the Stark County voters pursuant to R.C. 3769.27. The articles indicated that Brown, an attorney, drafted the petition language.

On June 11, after conducting a public hearing, the Ohio State Racing Commission approved Northfield Park's application to open and operate, through Canton OTB, a satellite facility in Canton.

On June 18, the petition entitled "Local Option Election Petition," signed by qualified Stark County electors, was filed with respondent Stark County Board of Elections. The petition did not contain the election falsification statement specified in R.C. 3501.38(J), including instead the following statement required by R.C. 3599.36: "WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE." The petitioners requested that the following question be submitted to the Stark County electors at the November 3 general election:

"Shall satellite facilities that receive simulcasts of live horse races and that conduct wagering on those simulcasts be prohibited throughout this county for a period of five (5) years?"

On August 4, the board certified the foregoing issue to the November 3 Stark County general election ballot.

On August 27, which was ten weeks after the petition was filed with the board and over three weeks after the board certified the issue set forth in the petition, relator Thomas A. Ascani, Jr., a qualified resident elector of Stark County, filed a written protest with the board challenging the validity of the petition. Ascani claimed that the petition was invalid because it did not contain the R.C. 3501.38(J) election falsification statement and that the statute permitting the election, R.C. 3769.27, is unconstitutional. Ascani requested that the board hold a hearing on his protest, declare the petition invalid, and order the issue contained in the petition removed from the November 3 Stark County election ballot. Canton submitted a letter to the board in support of Ascani's claim challenging the constitutionality of R.C. 3769.27.

On September 1 and 3, the board conducted hearings on the protest. At the hearings, Ascani's attorney conceded that she had been at the August 4 board meeting at which it decided to certify the petition issue to the November 3 ballot, but claimed that she was not representing Ascani at that time. Despite board member Brown's admitted role in drafting and reviewing the petition, the board rejected Ascani's request that Brown recuse himself from voting on the protest and Brown refused to voluntarily recuse himself. The board then voted two-to-two on a motion to uphold Ascani's protest, with Brown voting to deny the protest.

As a result of the board's tie vote, the board submitted the matter to respondent Secretary of State Bob Taft. The Secretary of State denied the protest on September 14.

On September 17, Ascani filed this expedited election action for a writ of prohibition or, in the alternative, a writ of mandamus to prevent respondents, the board, its members, and the Secretary of State, from conducting the November 3 election on the off-track-betting issue. We granted Canton's motion to intervene as a relator. Pursuant to S.Ct.Prac.R. X(9), the parties have submitted evidence and briefs, and Attorney General Betty D. Montgomery has filed a motion for leave to intervene as a respondent and briefs.

Jones, Day, Reavis & Pogue, Harry J. Lehman, J. Kevin Cogan and Kirsten K. Davis, Columbus; Brunner & Brunner Co., L.P.A., Jennifer L. Brunner and Edwin L. Kirby, Jr., Columbus, for relator Thomas A. Ascani, Jr.

Thomas M. Bernabei, Canton Law Director, Kathleen O. Tatarsky and Robert G. Rubin, Assistant Law Directors, for intervening relator, city of Canton.

Robert D. Horowitz, Stark County Prosecuting Attorney, David M. Bridenstine, Scott R. Peipho and David A. Thorley, Assistant Prosecuting Attorneys, for respondents Stark County Board of Elections and its members.

Betty D. Montgomery, Attorney General, Arthur Marziale, Jr. and Jeffrey B. Hartranft, Assistant Attorneys General, for respondent Secretary of State and intervening respondent Attorney General.

PER CURIAM.

Relators assert that they are entitled to writs of prohibition and mandamus to prevent the November 3 election on the off-track-betting issue. The Secretary of State counters that relators' claims are barred by laches. For the following reasons, we concur with the Secretary of State and deny the writs based on laches.

"The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party." State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 145, 656 N.E.2d 1277, 1279. "Extreme diligence and promptness are required in election-related matters." In re Contested Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 413, 650 N.E.2d 859, 862.

Relators did not act with the requisite diligence and promptness here. Although the local option petition was circulated before June and filed with the board on June 18, Ascani did not file his written statutory protest until ten weeks after the petition was filed and twenty-three days after the board certified the question in the petition to the November 3 election ballot. Canton did not submit its letter in support of Ascani's protest until five days after the protest. The evidence establishes that relators had at least constructive knowledge of the petition, especially given the local publicity concerning the matter and Ascani's counsel's presence at the board's August 4 certification meeting. They could have discerned their objections to the petition, i.e., failure to comply with R.C. 3501.38(J) and constitutional challenges to R.C. 3769.27, either before or at the time the petition was filed with the board. See State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308-309, 686 N.E.2d 238, 243-244.

Relators lack any justifiable excuse for not submitting a protest sooner. Even if relators were not responsible for any delay caused by the board's tie vote on Ascani's protest and the subsequent submission of the matter to the Secretary of State, that delay does not excuse or justify their own nearly three-month delay following the filing of the petition to submit a written protest. State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 187, 685 N.E.2d 507, 511.

Relators' delay in filing a written protest with the board was prejudicial because by the time they filed this action for extraordinary relief, the date for certifying the ballot form had passed, and by the time the expedited briefing schedule was completed, the date for providing absentee ballots had passed. Cooker Restaurant Corp., 80 Ohio St.3d at 309, 686 N.E.2d at 244; see, also, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48-49, 600 N.E.2d 656, 659; R.C. 3505.01; R.C. 3509.01.

In this regard, Ascani erroneously relies on nonelection cases to claim that no prejudice resulted from relators' failure to act promptly here. Cf., e.g., State ex rel. Roadway Express v. Indus. Comm. (1998), 82 Ohio St.3d 510, 513, 696 N.E.2d 1064, 1067. Nonelection cases do not normally require the "extreme diligence and promptness" required in election cases, nor do they...

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