State ex rel. Barth v. Hamilton Cty. Bd. of Elections

• Decision Date: 09 December 1992
• Docket Number: No. 92-1676,92-1676
• Parties: The STATE ex rel. BARTH et al. v. HAMILTON COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 219

65 Ohio St.3d 219

602 N.E.2d 1130

The STATE ex rel. BARTH et al. v. HAMILTON COUNTY BOARD OF ELECTIONS et al.

No. 92-1676.

Supreme Court of Ohio.

Submitted Sept. 22, 1992.

Decided Sept. 24, 1992.

Opinion announced Dec. 9, 1992. ^*

Relator Gerald A. Barth is a Republican elector in Hamilton County. Relator Nancy A. Magness is the Democratic nominee for an unexpired term on the Board of Commissioners of Hamilton County, an office that became vacant due to Sandra S. Beckwith's resignation. Magness's candidacy has been approved for the November 3, 1992 general-election ballot by respondents, the Hamilton County Board of Elections and its members. Relators seek to prohibit respondents from placing the name of Guy C. Guckenberger, the Republican nominee for Beckwith's unexpired term, on the general election ballot.

Beckwith filed notice of her resignation on February 19, 1992, which took effect two days later. Also on February 19, 1992, the Hamilton County Republican Executive Committee nominated Guckenberger as a candidate for Beckwith's unexpired term. On February 28, 1992, respondents received notice of Guckenberger's nomination.

On March 3, 1992, respondents voted in a tie on a motion to reject Guckenberger's nomination. Two of the four board members thought that (1) the committee had no authority to select a nominee in anticipation of Beckwith's resignation, and (2) the committee did not provide sufficient notice of its February 19 meeting. By letter dated July 9, 1992, the Secretary of State broke the tie, voting in favor of Guckenberger's nomination. Guckenberger's candidacy was subsequently approved for the general-election ballot.

Relators filed this action on August 20, 1992. Respondents initially moved for dismissal or summary judgment, but the parties have since filed stipulations of fact and merit briefs. The Secretary of State and Guckenberger have moved to intervene as respondents. Guckenberger has also requested leave to file a counterclaim and a cross-claim.

Donald J. McTigue, Youngstown, for relators.

Joseph T. Deters, Pros. Atty., Robert E. Taylor and James W. Harper, Cincinnati, for respondent Bd. of Elections.

Lee I. Fisher, Atty. Gen., and Cherry L. Poteet, Asst. Atty. Gen., for intervening respondent Secretary of State.

Thompson, Hine & Flory, Gordon M. Strauss, Jack F. Fuchs and Joanne Jocha Ervin, Cincinnati, for intervening respondent Guckenberger.

PER CURIAM.

The motions to intervene, which relators do not oppose, are sustained. The motion for leave to file a counterclaim and cross-claim is overruled. Both claims demand a writ of prohibition to prevent placement of Magness's name on the general-election ballot and, therefore, constitute a single cross-claim against respondents, as coparties to Guckenberger. Moreover, under Civ.R. 13(G), cross-claims must arise "out of the transaction or occurrence that is the subject matter * * * of the original action." Relators' complaint arose from the approval of Guckenberger's nomination; whereas Guckenberger's cross-claim arose from the approval of Magness's nomination. These acts may have occurred at approximately the same time, but do not represent a single event.

For a writ of prohibition to issue, we must find that respondents are about to exercise unauthorized quasi-judicial power and that this will cause injury for which relators have no adequate remedy in the ordinary course of the law. State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99, 562 N.E.2d 1383, 1384. In State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 591 N.E.2d 1194, we granted a writ of prohibition to prevent a board of elections from placing a candidate for sheriff on the primary ballot. We reviewed the board's decision in Shumate for " 'fraud, * * * abuse of discretion or a clear disregard of statutes or legal provisions.' " Id. at 14, 591 N.E.2d at 1196. See, also, State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 598 N.E.2d 1149, where this standard was used to review a tie-breaking decision by the Secretary of State.

Relators argue that Guckenberger's nomination was invalid because (1) the Republican executive committee did not give sufficient notice of the February 19 meeting, (2) the committee could not appoint a nominee before Beckwith's resignation took effect, and (3) Guckenberger was not nominated by a majority vote of the committee. Respondents argue that (1) relators lack standing to challenge Guckenberger's nomination, (2) the nomination was valid, and (3) relators should be denied relief due to laches. For the reasons that follow, we hold that relators have standing, but that Guckenberger was validly nominated by the executive committee. We, therefore, deny the writ of prohibition and do not decide if delay caused material prejudice in this case.

Standing

Respondents argue that relators lack standing because they are not members of the Republican executive committee. Relators reply that all electors have a "beneficial interest" in securing compliance with the election laws. Moreover, Barth claims standing based on his status as a registered Republican elector, and Magness claims standing based on her "adverse interest" as the Democratic nominee.

Relators cite State v. Brown (1882), 38 Ohio St. 344, and State ex rel. Gregg v. Tanzey (1892), 49 Ohio St. 656, 32 N.E. 750. Brown and Gregg are part of a long line of cases establishing that mandamus is available to enforce public duties, that any duty related to an election is public, and that a citizen has the capacity to sue even if the duty only generally affects him. State ex rel. Nimon v. Springdale (1966), 6 Ohio St.2d 1, 4, 35 O.O.2d 1, 3, 215 N.E.2d 592, 595.

The same rule applies in prohibition actions. Thus, in State ex rel. Newell v. Brown (1954), 162 Ohio St. 147, 54 O.O. 392, 122 N.E.2d 105, paragraphs one and two of the syllabus, we held:

"1. Ordinarily, a person is not authorized to attack the constitutionality of a statute where his private rights have suffered no interference or impairment, but as a matter of public policy a citizen does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself and the citizens generally.

"2. Prohibition is an appropriate proceeding to prevent the Secretary of State or a board of elections from placing on a ballot the names of candidates, which names may not lawfully be placed thereon. * * * " (Citations omitted.)

Respondents cite no persuasive authority for their position. Guckenberger cites State ex rel. Matasy v. Morley (1986), 25 Ohio St.3d 22, 25 OBR 18, 494 N.E.2d 1146, and State ex rel. Masterson v. Ohio State Racing Comm. (1954), 162 Ohio St. 366, 55 O.O. 215, 123 N.E.2d 1. Matasy held that:

"Pursuant to this court's holding in State, ex rel. Skilton, v. Miller (1955), 164 Ohio St. 163 [57 O.O. 145, 128 N.E.2d 47], paragraph two of the syllabus, where 'no legal right of a person can be affected by the failure of a public official to act in any given manner, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus to require such official to so act.' Similarly, a prohibition action may only be commenced by a person who is either a party to the proceeding sought to be prohibited, State, ex rel. Pratt, v. Earhart (1956), 164 Ohio St. 480 [58 O.O. 324, 132 N.E.2d 226], or demonstrates an injury in fact to a legally protected interest. State, ex rel. Dayton Newspapers, v. Phillips (1976), 46 Ohio St.2d 457 [75 O.O.2d 511, 351 N.E.2d 127]." Matasy, 25 Ohio St.3d at 23, 25 OBR at 19, 494 N.E.2d at 1147.

The Masterson court held at paragraph one of the syllabus:

"In the absence of statutory authority, a taxpayer lacks legal capacity to institute an action to enjoin the expenditure of public funds unless he has some special interest therein by reason of which his own property rights are placed in jeopardy."

Neither of these cases involved the enforcement of election laws. Moreover, Matasy cited Skilton with approval, and Skilton also recognized the " * * * line of cases involving election questions * * * [which] held that a citizen has sufficient interest as an elector to maintain an action in mandamus to compel compliance with the election laws." Skilton, 164 Ohio St. at 164-165, 57 O.O. at 146, 128 N.E.2d at 49, citing Brown, Gregg and Newell. Accordingly, we conclude that relators have standing as electors to bring this action.

Validity of Guckenberger's Nomination

Beckwith resigned her office within the period that requires her successor to be elected at the 1992 general election. R.C. 305.02(A). Thus, under R.C. 3513.31, the Hamilton County Republican Executive Committee was permitted to select and certify its nominee for Beckwith's unexpired term "not later than four p.m. on the tenth day following the day on which the vacancy occur[red]." R.C. 3513.31 also required the committee to meet and select a nominee, to provide two days' notice of the time, place, and purpose of the meeting, and to make the selection by a majority vote of the members in attendance.

Relators first claim that Guckenberger's nomination was invalid because the Republican executive committee did not provide sufficient notice of the purpose for its February 19, 1992 meeting. The notice, which was dated February 12, 1992, stated that the meeting would be held for "Consideration of Candidate Recommendations for the Primary Election Dated May 5, 1992," and that "recommendations of the Chairman of the Central Committee of the Hamilton County Republican Party [would] be considered for approval by the Executive Committee." Relators complain that the notice referred only to candidate recommendations for the 1992 primary and, thus, did not advise that a nominee would also be selected to run in the general election for Beckwith's unexpired...