State ex rel. Donahue v. Allen Cnty. Ohio
| Decision Date | 20 September 2021 |
| Docket Number | 1-21-28 |
| Parties | STATE EX REL., ALICE DONAHUE, ET AL., PETITIONERS-APPELLANTS, v. THE ALLEN COUNTY OHIO, BOARD OF ELECTIONS, ET AL., RESPONDENTS-APPELLEES. |
| Court | Ohio Court of Appeals |
Appeal from Allen County Common Pleas Court Trial Court No. CV 2021 0098
Judgment Affirmed
Richard E. Siferd for Appellants
Lawrence A. Huffman for Appellee, Elizabeth Hardesty
Kayla M. Campbell for Appellee, Bd. of Elections
{¶1} Petitioners-appellants, Alice Donahue ("Donahue") and Barton H. Mills ("Mills) (collectively "petitioners"), appeal the June 30, 2021 judgment of the Allen County Court of Common Pleas denying their complaint for a writ of prohibition and granting summary judgment in favor of respondents-appellees, the Allen County Board of Elections (the "board"); Elizabeth Hardesty ("Hardesty"); and Gary Freuh ("Freuh"), Mona Willamowski ("Willamowski"), Keith Cheney ("Cheney") and Jeffrey Rex ("Rex") as members of the board (collectively, "respondents"). For the reasons that follow, we affirm.
{¶2} This case stems from the 2021 mayoral election for the City of Lima in which Hardesty is a candidate. Following the submission of Hardesty's petition of candidacy for mayor to the board on February 3, 2021, Mills challenged Hardesty's eligibility for the position on February 18, 2021 under Section 72 of the City of Lima Charter, which requires elected officers to be residents and electors of Lima for at least six months before the last date on which nominating petitions can be filed.[1] Mills alleged that Hardesty was not a resident and elector of Lima for at least six months before the date on which nominating petitions could be filed in accordance with the charter.
{¶3} On April 1, 2021, Donahue filed a complaint for a writ of prohibition and declaratory judgment in the trial court against the board, Kathy A. Meyer ("Meyer"), Director of the board; the City of Lima ("Lima"); Freuh, Willamowski, Cheney, Rex, as members of the board; and Hardesty.[2] (Doc. No. 1). Specifically, Donahue sought to prevent the board from including Hardesty on only the May 4, 2021 primary-election ballot for Lima mayor. On April 6, 2021, the board, Meyer, Freuh, Willamowski, Cheney, and Rex filed a motion to dismiss the complaint along with an answer.[3] (Doc. No. 8). That same day, Lima filed a motion to dismiss. (Doc. No. 9). On April 13, 2021, Donahue voluntarily dismissed its complaint under Civ.R. 41(A)(1)(a) against Meyer and Lima. (Doc. No. 12).
{¶4} On April 13, 2021, petitioners filed an amended complaint in which Mills was added as a party to the case. (Doc. No. 13). The next day, petitioners filed a second amended complaint. (Doc. No. 15). Hardesty filed an answer on April 20, 2021. (Doc. No. 18). On April 26, 2021, the board, Freuh, Willamowski, Cheney, and Rex filed a motion to dismiss the second amended complaint along with an answer. (Doc. No. 23). Petitioners filed a memorandum in opposition to the board, Freuh, Willamowski, Cheney, and Rex's motion to dismiss the second amended complaint together with a motion for judgment on the pleadings. (Doc. No. 25). The board, Freuh, Willamowski, Cheney, and Rex, and Hardesty filed memoranda in opposition to petitioners' motion for judgment on the pleadings on May 5 and 10, 2021, respectively. (Doc. Nos. 28, 30).
{¶5} Following Hardesty's primary election to be a candidate for mayor in the November 2, 2021 general election, the trial court concluded that petitioners' complaint for a writ of prohibition requesting that the trial court prevent the board from including Hardesty on the May 4, 2021 primary-election ballot was rendered moot. (See Doc. No. 47). Consequently, after being granted leave by the trial court, petitioners filed a third amended complaint on June 15, 2021 in the trial court. (Doc. Nos. 34, 41, 42). The third amended complaint specifically requested that the trial court prevent the board from including Hardesty on the November 2, 2021 general-election ballot. Hardesty filed an answer on June 16, 2021. (Doc. No. 43). On June 17, 2021, the board, Freuh, Willamowski, Cheney, and Rex filed a motion to dismiss the third amended complaint along with an answer. (Doc. No. 44). On June 21, 2021, Hardesty filed a motion to dismiss the third amended complaint. (Doc. No. 45).
{¶6} On June 30, 2021, treating the parties' motions to dismiss as motions for summary judgment, the trial court denied petitioners' complaint for a writ of prohibition and granted summary judgment in favor of respondents.[4] (Doc. No. 47).
{¶7} Petitioners filed a notice of appeal on July 8, 2021. (Doc. No. 49). They raise one assignment of error.
The Trial Court erred in finding that Elizabeth Hardesty was a resident of the City of Lima for six months before the filing deadline for the 2021 primary election, and therefore qualified as a candidate for Mayor of the City of Lima, even though she repeatedly referred to Houston, Texas as her home.
{¶8} In their sole assignment of error, petitioners argue that the trial court erred by denying their complaint for a writ of prohibition and by granting summary judgment in favor of respondents after concluding that Hardesty was a resident of Lima for at least six months before the date on which nominating petitions could be filed in accordance with Section 72 of the City of Lima Charter.
{¶9} We review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). "De novo review is independent and without deference to the trial court's determination." ISHA, Inc. v Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶10} "The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact." Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). "In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument." Id., citing Dresher at 292. "The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings." Id., citing Dresher at 292 and Civ.R. 56(E).
{¶11} Petitioners argue that the trial court erred by granting summary judgment in favor of respondents and argue that they are entitled to relief in prohibition because the board lacks the authority to include Hardesty on the November 2, 2021 general-election ballot. In other words, petitioners contend that genuine issues of material fact remain whether the board disregarded applicable law by concluding that Hardesty was a resident of Lima for at least six months before the date on which nominating petitions could be filed in accordance with Section 72 of the City of Lima Charter.
{¶12} To be entitled to a writ of prohibition, petitioners must prove that the board exercised quasi-judicial power, that it lacked the authority to do so, and that they lack an adequate remedy in the ordinary course of the law. State ex rel Keith v. Lawrence Cty. Bd. of Elections, 159 Ohio St.3d 128, 2019-Ohio-4766, ¶ 5.
{¶13} As an initial matter, respondents rely on R.C. 3513.05 to contend that the board is without authority to invalidate Hardesty's petition and remove her name from the general-election ballot. However, because Lima's mayoral candidates appear on a nonpartisan ballot, R.C. 3513.05 is not applicable here. See Webb v. Lucas Cty. Bd. of Elections, 195 Ohio App.3d 396, 2011-Ohio-4576, ¶ 18 (6th Dist.) ( ). Instead, when a candidate files a nominating petition, R.C. 3513.262 and 3513.263 provide the procedure to challenge the validity of that candidacy in a primary and general election. See Foster v. Cuyahoga Cty. Bd. of Elections, 53 Ohio App.2d 213, 221 (8th Dist.1977). See also State ex rel Gamble v. Franklin Cty. Bd. of Elections, 10th Dist. Franklin No. 01AP-1235, 2002-Ohio-2708, ¶ 21-23. In other words, unlike R.C. 3513.05, the General Assembly choose to provide a protest procedure under 3513.262 and 3513.263, which permits protests prior to a nonpartisan primary and nonpartisan general election. Compare State ex rel. Klein v. Cuyahoga Cty. Bd. of Elections, 102 Ohio App.3d 124, 127-128 (8th Dist. 1995) (). Consequently, (based on the facts and circumstances presented) petitioners' protest is not moot. See State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections, 144 Ohio St.3d 579, 2015-Ohio-5306, ¶ 41 (agreeing "that it would be futile to require them to file a new challenge with the board based on exactly the same facts"), citing State ex rel. Cotterman v....
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