State ex rel. Green v. Casey, 90-559

• Decision Date: 30 April 1990
• Docket Number: No. 90-559,90-559
• Citation: 554 N.E.2d 1288,51 Ohio St.3d 83
• Parties: The STATE ex rel. GREEN et al., v. CASEY et al.
• Court: Ohio Supreme Court

Page 83

51 Ohio St.3d 83

554 N.E.2d 1288

The STATE ex rel. GREEN et al., v. CASEY et al.

No. 90-559.

Supreme Court of Ohio.

Submitted April 17, 1990.

Decided April 30, 1990.

By original complaint filed in this court on April 3, 1990, relators, Syvonia E. Green, William H. Beatty, Bruce Feierabend, Susan Elizabeth Burkey, Douglas J. Sapp, Roderick L. Matheson, Sharon Lynn Woodall, Gordon Gary Dinnell, Leanne K. Harbaugh, Jeffrey E. Greenwood and Karen Ditmars Laipply, seek a writ of mandamus compelling the placement of their names on the May 8, 1990 primary ballot as candidates for the office of ward committee person on the county central committee of their respective political parties. Relators allege that they each filed timely declaration of candidacy and petition papers meeting election law requirements, but that respondents, members of the Franklin County Board of Elections, invalidated their papers and refused to certify their names for placement on the ballot. Relators instituted this action on the day that the board was required to have absentee ballots for the primary election printed and ready for use. See R.C. 3509.01.

On April 10, 1990, respondents filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted.

LeRoy A. Nichols, for relators.

Michael Miller, Pros. Atty., William B. Shimp, Columbus, and Harland H. Hale, for respondents.

PER CURIAM.

Motions to dismiss test the sufficiency of the complaint. Assn. for the Defense of the Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 537 N.E.2d 1292. In their motion, however, respondents argue that relators' complaint should be dismissed due to laches.

Respondents rely principally on State, ex rel. Hinkle, v. Franklin Cty. Bd. of Elections (1989), 47 Ohio St.3d 117, 548 N.E.2d 230, in which we denied a writ of mandamus because a relator unjustifiably waited to file an election matter until after the absentee ballots were printed and mailed. See Section 11, Rule VIII of the Supreme Court Rules of Practice. Here, the record contains no evidence showing unjustifiable delay or that absentee ballots had been mailed when relators' complaint was filed. Thus, we are not persuaded to deny relief in this case on Hinkle's authority. Moreover, we did not dismiss the complaint in Hinkle as insufficient. Thus, we overrule respondents' motion to dismiss.

Beyond this, we note that respondents elected to file a motion to dismiss, rather than answer according to the abbreviated schedule for disposing of election matters set forth in Section 11, Rule VIII. In State, ex rel. Beck, v. Casey (1990), 51 Ohio St.3d 79, 554 N.E.2d 1284, decided today, we held that when a respondent in an election matter files a motion to dismiss instead of immediately answering the complaint, he does so at the risk of having the court accept the relator's factual allegations as true in deciding whether relief should be granted. Thus, pursuant to Beck, we accept relators' version of the facts in this case and proceed to the ultimate issue--whether respondents flagrantly misinterpreted a statute or clearly disregarded statutes or applicable legal provisions and, thus, abused their discretion by rejecting relators' declaration of candidacy and petition papers. State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879. Moreover, we view the case in light of the public policy favoring free competitive elections. See State, ex rel. Beck, v. Casey, supra.

We find that the board properly rejected the declaration of candidacy and petition papers submitted by relators Green, Burkey, Woodall and Dinnell. Green's petition was invalidated because she, like the other relators, needed five valid signatures to qualify for placement on the primary ballot, R.C. 3513.05, but one of her five signers was not registered to vote, and another signer's name was printed, not written in cursive. Burkey's petition was also invalidated because one of the signatures on it was printed. Respondents had authority to invalidate these signatures under R.C. 3501.38(A), which requires signers to be registered electors, and R.C. 3501.38(B) ("Each signer may also print his name, so as to clearly identify his signature"), which implicitly requires signatures to be written in cursive.

Woodall's declaration of candidacy and petition papers were rejected because she did not indicate her voting residence on them as being the residence that was registered with the board of elections. Only persons who possess the qualifications of an elector may be elected to office in this state, Section 4, Article XV of the Ohio Constitution, and a person is not a qualified elector unless his actual current address is registered with the board of elections, In re Protest Filed by Citizens for the Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 104, 551 N.E.2d 150, 153. Under this authority, respondents did not abuse their discretion by rejecting Woodall's filings.

Dinnell's petition was invalidated mainly because one signer did not correctly identify his voting residence. R.C. 3501.38(C) requires signers to place on a petition their voting residence, i.e., the residence on file with the board of elections. In re Protest, supra. As Dinnell's signer did not do this, respondents were authorized to reject his declaration of candidacy and petition papers.

In contrast, we can find no justification for respondents' rejection of the declaration of candidacy and petition papers filed by relators Beatty, Sapp, Matheson, Feierabend, Harbaugh, Greenwood and Laipply. Beatty's petition was invalidated because he corrected the signature total listed on his circulator's affidavit. R.C. 3501.38(E) and 3513.07 (declaration of candidacy and petition forms with which candidates must substantially comply) require a circulator to indicate on...