State ex rel. Finkbeiner v. Lucas Cty. Bd.

Decision Date27 July 2009
Docket NumberNo. 2009-1147.,2009-1147.
Citation912 N.E.2d 573,2009 Ohio 3657,122 Ohio St.3d 462
PartiesThe STATE ex rel. FINKBEINER v. LUCAS COUNTY BOARD OF ELECTIONS et al.
CourtOhio Supreme Court

Vorys, Sater, Seymour and Pease, L.L.P., John J. Kulewicz, William J. Pohlman, Mary J. Henkel, Michael J. Hendershot, Columbus, and Elizabeth A. Davis, Cleveland; and Law Office of Fritz Byers and Fritz Byers, Toledo, for relator.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borrell, Assistant Prosecuting Attorney, for respondents.

PER CURIAM.

{¶ 1} This is an original action for a writ of prohibition to prevent a board of elections and its members from placing a mayoral recall issue on the November 3 2009 general election ballot. Because the relator has established his entitlement to the requested extraordinary relief, we grant the writ.

Recall Petition

{¶ 2} In 2008, the group known as Take Back Toledo requested a recall petition from Gerald E. Dendinger, the clerk of the Toledo City Council. In November 2008, the clerk sent the group a form for a recall petition. The petition form included the statement "Whoever knowingly signed this petition more than once, signs a name other than his own, or signs when not a legal voter is liable to prosecution."

{¶ 3} Relator, Carleton S. Finkbeiner, is the mayor of the city of Toledo. On April 9, 2009, Take Back Toledo submitted to the clerk of council a signed petition "for the recall of Carleton S. Finkbeiner who holds the office of Mayor in the City of Toledo."

{¶ 4} The clerk of the city council sent the petition to respondents, the Lucas County Board of Elections and its members, to determine the validity of the signatures contained in the petition. Section 87A of the Toledo Charter requires valid signatures of 25 percent of the electors voting in the last city election or, in this case, 19,753 valid signatures, to certify the recall issue to the election ballot. The board examined most of the part-petitions submitted, including 39,994 signatures, and on April 17, it found 20,444 of those signatures to be valid.

{¶ 5} By letter dated April 20, Finkbeiner informed the clerk of council that he was challenging the sufficiency of the petition because it failed to state that election falsification is a fifth-degree felony. On that same day, however, the clerk certified the sufficiency of the recall petition to the board of elections and requested that the board hold the recall election at the November 3, 2009 general election. Finkbeiner administratively appealed the clerk's decision to the Lucas County Court of Common Pleas, but that appeal has now been dismissed on the clerk's motion based on the common pleas court's determination that the decision was not appealable under R.C. Chapter 2506.

Protest and Board of Elections Decision

{¶ 6} On April 28, Finkbeiner filed a protest against the recall petition with the board of elections. Finkbeiner claimed that the petition was defective because (1) it lacked the election-falsification statement that he alleges is required by R.C. 3501.38(J), and (2) over 2,500 additional petition signatures were invalid, so the petition lacked sufficient valid signatures.

{¶ 7} The board of elections held a hearing, including sworn testimony, on the protest on May 29 and June 9. On June 9, the board of elections denied Finkbeiner's protest and certified the recall issue for placement on the November 3, 2009 general election ballot.

Prohibition Action

{¶ 8} On June 23, Finkbeiner filed this original action for a writ of prohibition to prevent respondents from including the mayoral recall issue on the November 3, 2009 general election ballot. On July 16, respondents answered.

{¶ 9} This cause is now before this court for our S.Ct.Prac.R. X(5) determination. Because this case involves the November 3 election, we expedite our decision.

S.Ct.Prac.R. X(5) Standard

{¶ 10} We must now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. S.Ct. Prac.R. X(5). Dismissal, which the board and its members request, is required if it appears beyond doubt, after presuming the truth of all material factual allegations of Finkbeiner's complaint and making all reasonable inferences in his favor, that he is not entitled to the requested extraordinary relief in prohibition. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 8.

{¶ 11} If, however, after so construing Finkbeiner's complaint, it appears that his prohibition claim may have merit, the court will grant an alternative writ and issue a schedule for the presentation of evidence and briefs. Id.

{¶ 12} Finally, if the pertinent facts are uncontroverted and it appears beyond doubt that Finkbeiner is entitled to the requested extraordinary relief in prohibition, a peremptory writ will be granted. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 14.

{¶ 13} With these standards guiding our S.Ct.Prac.R. X(5) determination, we next consider Finkbeiner's prohibition claim.

Prohibition Claim

{¶ 14} Finkbeiner requests a writ of prohibition to prevent the board of elections and its members from placing the mayoral recall issue on the November 3, 2009 general election ballot. To be entitled to the writ, Finkbeiner must establish that (1) the board of elections and its members are about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no adequate remedy exists in the ordinary course of law. State ex rel. Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶ 15.

{¶ 15} Finkbeiner has established the first requirement for the writ because the board of elections "exercised quasi-judicial authority by denying his protest after conducting a hearing that included sworn testimony." State ex rel. Wellington v. Mahoning Cty. Bd. of Elections, 120 Ohio St.3d 198, 2008-Ohio-5510, 897 N.E.2d 641, ¶ 10. Therefore, the dispositive issue is whether Finkbeiner established the remaining prohibition requirements.

Prohibition: Adequate Remedy

{¶ 16} To be entitled to the writ, Finkbeiner is required to establish the lack of an adequate remedy in the ordinary course of the law. State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 18, 25.

{¶ 17} Finkbeiner claims that he lacks an adequate remedy in the ordinary course of law. In their answer, respondents admit that this legal requirement has been met.

{¶ 18} Although this court is not bound by the parties' stipulation on this legal issue, we hold that the election was sufficiently imminent at the time the elections board denied Finkbeiner's protest and when Finkbeiner filed this prohibition action that he lacked an adequate remedy in the ordinary course of law. See State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291-292, 649 N.E.2d 1205, quoting State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 412 N.E.2d 393 ("Concerning the third prerequisite for a writ of prohibition, given the proximity of the election, an injunction would arguably not constitute an adequate remedy because any `appellate process would last well past the election'"); cf. Tatman v. Fairfield Cty. Bd. of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 18-19; State ex rel. Gains v. Mahoning Cty. Bd. of Elections, 119 Ohio St.3d 1433, 2008-Ohio-4442, 893 N.E.2d 197; and State ex rel. Evans v. Blackwell, 111 Ohio St.3d 1 2006-Ohio-4334, 854 N.E.2d 1025, ¶ 42-45, which are all cases in which the time periods before the pertinent elections were somewhat lengthier than those involved here.

{¶ 19} In this regard, we are now about two months away from the date that absentee ballots must be printed and available for use. R.C. 3509.01.

{¶ 20} Furthermore, prospective relators in election-related cases should not be placed in an impossible situation. On the one hand, we have barred them from filing election-related actions if they do not bring their action with the requisite promptness. See, e.g., Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 12 ("`If relators do not act with the required promptness, laches may bar the action for extraordinary relief in an election-related matter'"). If we were to hold now that Finkbeiner had an adequate remedy at law, we would be deciding that if relators act too quickly, their action is also barred because they have not filed it in the correct forum. Election-law precedent should not be constructed as an elaborate trap for the unwary. Prospective relators need not navigate between the Scylla of acting too slowly and the Charybdis of acting too quickly to have this court address the merits of their election-related prohibition claim.

{¶ 21} Therefore, as respondents admit, the election is sufficiently close so that Finkbeiner lacks an adequate remedy in the ordinary course of law via an action for a prohibitory injunction.

Prohibition: Unauthorized Exercise of Quasi-Judicial Authority

{¶ 22} For the remaining prohibition requirement that the board is about to exercise unauthorized judicial or quasi-judicial power, "we must determine whether the board [of elections] acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law." State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. There is no claim or evidence of fraud or corruption here, so Finkbeiner must establish that the board of elections abused its discretion or clearly disregarded applicable law by denying his protest and certifying the recall issue to the November 3 el...

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