State, ex rel. Fite, v. Saddler, 91-1238

• Citation: 580 N.E.2d 1065,62 Ohio St.3d 170
• Decision Date: 14 November 1991
• Docket Number: No. 91-1238,91-1238
• Parties: The STATE, ex rel. FITE, v. SADDLER, Director, Scioto County Board of Elections, et al.
• Court: United States State Supreme Court of Ohio

Page 170

62 Ohio St.3d 170

580 N.E.2d 1065

The STATE, ex rel. FITE, v. SADDLER, Director, Scioto County Board of Elections, et al.

No. 91-1238.

Supreme Court of Ohio.

Submitted and Decided Oct. 9, 1991.

Opinion Announced Nov. 14, 1991. ^*

Relator alleges and respondents admit the following facts: (1) that relator, Damon L. Fite, is a resident-elector of the city of Portsmouth, (2) that Richard T. Schisler is the incumbent city solicitor of the city and a candidate for re-election to that office, (3) that at the time Schisler filed his nominating petition he did not pay the full filing fee required by the Portsmouth Charter, (4) that on the day after the last day for filing a nominating petition relator filed a protest to Schisler's candidacy with respondent Scioto County Board of Elections, and that, on the same day, respondent permitted Schisler to pay the balance of the fee due, and (5) that respondent certified Schisler's name for the November ballot without notifying relator that it had fixed a date and time for hearing his protest.

Relator seeks a writ of prohibition restraining respondents, the board of elections and its director, from placing Schisler's name on the ballot, alleging that full payment of the fee is required at the time of filing petitions by Section 144(h) of the Portsmouth Charter. Respondents filed a motion to dismiss, which this court overruled on August 27, 1991. On September 16, respondents then filed a motion for summary judgment.

Mark S. Froehlich, Columbus, for relator.

Lynn Alan Grimshaw, Pros. Atty., Portsmouth, and Mark A. Leventhal, Cleveland Heights, for respondents.

Richard T. Schisler, pro se, urging denial of writ, for amicus curiae.

PER CURIAM.

We grant respondents' motion for summary judgment and deny the writ.

Respondents first state that summary judgment is appropriate because the only factual issue in dispute--whether Schisler learned that his filing fee was deficient on the evening of February 21, 1991, the last day for filing, or on the next day, February 22, 1991--is immaterial. We agree and find that there is no genuine issue as to any material fact. Civ.R. 56(C).

Respondents next argue that, as no quasi-judicial act took place, prohibition is an improper remedy. They cite several cases in which this court has declared that the placement of issues on the ballot is a ministerial, and not a quasi-judicial, act. However, in State, ex rel. Newell, v. Brown (1954), 162 Ohio St. 147, 54 O.O. 392, 122 N.E.2d 105, at paragraph two of the syllabus, we stated:

"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.]"

Moreover, the writ has also been allowed in cases challenging a candidacy on grounds other than the sufficiency of the petitions. See State, ex rel. Kendzia, v. Carney (1969), 20 Ohio St.2d 37, 49 O.O.2d 239, 252 N.E.2d 639, certiorari denied (1970), 399 U.S. 926, 90 S.Ct. 2235, 26 L.Ed.2d 792 (criminal conviction as a bar to candidacy); State, ex rel. Graham, v. Cuyahoga Cty. Bd. of Elections (1979), 60 Ohio St.2d 123, 14 O.O.3d 349, 397 N.E.2d 1204 (candidate untruthfully signed affidavit that he had not voted as a member of a different political party within preceding four years).

It is admitted that respondents did not hear relator's protest about the late filing fee, but simply ignored it and accepted the late filing of the balance of the fee. Clearly, the protest concerning the fee raised the claim that respondents were about to place the name of a candidate on the ballot who was not entitled to be there, and the failure of respondents to grant a hearing thereon does not make an action in prohibition improper under State, ex rel. Newell, supra. Accordingly, we determine that by ignoring the relator's protest, the respondents found that the late filing of the total fee was inconsequential.

Next, respondents argue that this issue has already been decided by State, ex rel. Schulman, v. Cuyahoga Cty. Bd. of Elections (1957), 167 Ohio St. 19, 3 O.O.2d 462, 145 N.E.2d 666. In Schulman, we refused to issue a writ of mandamus compelling the respondent-board to omit from the ballot the names of certain candidates for city office who paid only a partial filing fee. In that case, as in the instant case, the filing fee was one-half of one percent of the salary for the office; however, there, unlike here, the city council had passed an ordinance raising the salary of the office, effective January 1, 1958. The ordinance was passed on July 1, 1957, and the last day for filing petitions and paying the fee was August 7, 1957. No one informed the board of elections of the change in salary until August 5. Because of the confusion created as to whether the one-half of one percent related to the salary at the time of filing or the salary at the time of taking office, some candidates paid one-half of one percent of the former and some one-half of one percent of the latter. Determining that the latter, higher fee was correct, the board so notified the ...