State ex rel. Flex v. Gwin

• Decision Date: 29 October 1969
• Docket Number: No. 69-666,69-666
• Citation: 252 N.E.2d 289,49 O.O.2d 185,20 Ohio St.2d 29
• Parties: , 49 O.O.2d 185 The STATE ex rel. FLEX v. GWIN et al., Board of Elections of Stark County, et al.
• Court: Ohio Supreme Court

Page 29

20 Ohio St.2d 29

252 N.E.2d 289, 49 O.O.2d 185

The STATE ex rel. FLEX

v.

GWIN et al., Board of Elections of Stark County, et al.

No. 69-666.

Supreme Court of Ohio.

Oct. 29, 1969.

H. Gene Shackle, Canton, for relator.

David D. Dowd, Jr., Pros, Atty., Paul W. Brown, Atty. Gen., and Robert D. Zitko, Columbus, for respondents.

PER CURIAM.

In this action, originating in this court, relator seeks to compel the respondent board of elections to place his name on the November 4, 1969, ballot as a candidate for judge of the Canton Municipal Court.

This case arises as a result of this court's decision in State ex rel. Miller v. Gwin, Case No. 69-321, decided June 18, 1969, 42 Ohio BAR No. 25, page 854, on the authority of State ex rel. Graves v. Brown, 18 Ohio St.2d 61, 247 N.E.2d 463. In the Miller case, it was determined that Clay E. Hunter, the sole Democratic candidate for municipal judge was ineligible to be a candidate, because of his age. Section 6(C), Article IV, Ohio Constitution.

Relator alleges that he was selected as a candidate to fill the vacancy pursuant to the provisions of Section 3513.31, Revised Code, which provides that where a candidate withdraws or dies prior to the election the vacancy may be filled by a district committee of the same political party.

Relator alleges that the board of elections now refuses to place his name on the ballot, giving rise to the present action.

It is respondents' position first, that there is no vacancy inasmuch as Hunter was ineligible under the Constitution at the time he filed his nominating petition, and second, if there is a vacancy it is one which does not fall within the provisions of Section 3513.31, Revised Code, because it was not created by death or withdrawal of the candidate.

Respondents' basic argument is that, inasmuch as Hunter was ineligible to succeed himself as Municipal Judge because of his age, there was no valid Democratic candidate for the office of Municipal Judge. Thus, there was no nomination, no withdrawal and no vacancy. In other words, respondents' position is that since Hunter was ineligible the situation is the same as if no person had sought the nomination.

In the present case, an individual in good faith and in reliance on the fact that both the Secretary of State, as the chief election officer, and the Attorney General had issued opinions stating that a person in his position was eligible for re-election, filed his declaration of candidacy with the necessary number of signatures. Members of his party signed his petitions in the belief that they would have a member of the Democratic party as a candidate for judge at the general election. However, prior to the primary, but too late for another candidate to be placed on the primary ballot, this court decided State ex rel. Graves v. Brown, 18 Ohio St.2d 61, 247 N.E.2d 463, which held that a person in Hunter's position could not, because of age, be elected to the office of judge.

Hunter was the unopposed Democratic candidate for this office and, in the normal course of events, would have been issued a certificate of nomination. Section 1901.07, Revised Code, and Section 3513.02, Revised Code. Thus, the Democratic party did, in fact, have a candidate for this office until a time too late to substitute another in his place at the primary election.

The term 'vacancy,' in relation to public office, is not subject to any technical definition or meaning. State ex rel. Foughty v. Friederich (N.D....