State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections

• Decision Date: 05 November 2001
• Docket Number: No. 01-1811.,01-1811.
• Citation: 757 NE 2d 1135,93 Ohio St.3d 592
• Parties: THE STATE EX REL. NEWELL v. TUSCARAWAS COUNTY BOARD OF ELECTIONS ET AL.
• Court: Ohio Supreme Court

93 Ohio St.3d 592

757 NE 2d 1135

THE STATE EX REL. NEWELL v. TUSCARAWAS COUNTY BOARD OF ELECTIONS ET AL.

No. 01-1811.

Supreme Court of Ohio.

Submitted October 30, 2001.

Decided November 5, 2001.

Squire, Sanders & Dempsey, L.L.P., David J. Young and Michael R. Reed, for relator.

Michael A. Cochran, Tuscarawas County Assistant Prosecuting Attorney, for respondent Tuscarawas County Board of Elections. Betty D. Montgomery, Attorney General, Darrell M. Pierre, Jr., and Elizabeth Luper Schuster, Assistant Attorneys General, for respondent Secretary of State of Ohio.

Susan J. Kyte, urging granting of the writ for amicus curiae, Ohio Education Association.

Per Curiam.

The November 5, 1963, May 6, 1969, December 9, 1969, May 5, 1970, November 4, 1975, and November 7, 1977 levies for the Newcomerstown Exempted Village School District provide over twenty mills of the 42.60 total voter-approved operating mills for the school district. On August 21, 2001, petitions were filed with respondent Tuscarawas County Board of Elections pursuant to R.C. 5705.261 to submit issues proposing the repeal of these levies to the electors of the school district.

On September 10, 2001, twenty days after the petitions were filed with the board, relator, Charles E. Newell, a registered elector of Tuscarawas County, filed a protest against the petitions. This protest consisted of six general categories of objections.¹ Newell claimed that persons had signed petitions before their voter registration applications had been approved by the board, that certain persons had requested that their signatures be removed before the petitions were filed but their names were not removed, that some petition signers' addresses differed from their addresses filed with the board, that some signatures had been signed by someone other than the named signer, that some signatures could not be counted because they had been printed, and that certain petition papers had circulator statements specifying a signature total less than the number of signatures on the petition paper.

On September 12, 2001, the board met in an emergency session and scheduled a hearing on Newell's protest for September 13. At the September 13 hearing, the board decided to continue the hearing to permit Newell to further substantiate his protest because Newell had failed to specify all of the signatures being challenged by his protest. Following the September 13 hearing, Newell's attorney advised the board that he would be available to complete the hearing during the week beginning September 17, but according to Newell's counsel, the board advised him that that week was unacceptable because board members would be attending the Tuscarawas County Fair. On September 18, the board notified Newell that the hearing would be held on September 27.

On September 27, the board conducted the protest hearing. At the hearing, Newell submitted exhibits specifying the signatures he challenged and the reasons for each of his challenges. Newell also submitted three affidavits of persons who had signed the petitions. John L. Bryant and Bonnie Myers stated in their affidavits that a petition circulator had misrepresented the purpose of signing the petitions and that when they subsequently requested that the circulator strike their names from the petitions, the circulator represented that he would strike the signatures, but he instead filed the petitions without striking Bryant's and Myers's names. Ida Roberts stated in her affidavit that a petition circulator misrepresented the purpose of the petitions and did not witness her sign her own name as well as her husband's name to the petitions. The board had stricken Bryant's and the Robertses' signatures from the petitions.

The board noted that it would have been preferable for Newell to have requested that the board subpoena the affiants as well as other petition signers so that they could have been subject to cross-examination at the protest hearing. Newell's attorney apologized for not having these witnesses subpoenaed and claimed, without evidentiary support, that the three affiants were all unavailable to testify at the protest hearing. Newell's attorney stated that he had examined the petitions the night before the September 27 hearing to determine where it was clear that one person had signed for two persons.

At the September 27 hearing, Newell requested that the board conduct a comparative analysis of petition signatures and voter registration records and that it subpoena some of the petition signers "if there is any doubt in the Board's mind that the signatures are not of whom they purport to be." When one board member asked if delaying a protest decision upon Newell's request for further board investigation would affect an election deadline, Newell's attorney asked whether there were deadlines for putting the issues on the ballot and for printing the ballots.

The board, following an executive session to consult with its attorney, allowed Newell to copy voter registration records, which he had failed to submit previously, to attempt to prove his claim that certain petition signatures were written by the same person. The board's deputy director, however, testified that her comparison of the challenged signatures could not establish that they were not the valid signatures they purported to be.

The board struck some signatures because of Newell's challenges, but ultimately denied his protest, including his claim that the petition papers containing signatures that had not been witnessed by the circulator should be stricken. The board determined that the petitions contained the following totals of valid signatures: repeal of the November 5, 1963 levy, 461 signatures; repeal of the May 6, 1969 levy, 444 signatures; repeal of the December 9, 1969 levy, 469 signatures; repeal of the May 5, 1970 levy, 465 signatures; repeal of the November 4, 1975 levy, 466 signatures; and repeal of the November 7, 1977 levy, 456 signatures. All of the petitions exceeded the four hundred and forty signatures required to place the issues on the November 6, 2001 election ballot.

On October 11, 2001, fourteen days after the board's decision denying his protest, Newell filed this expedited election action for a writ of prohibition to prevent respondents, the board of elections, and the Secretary of State of Ohio, from placing any of the proposed issues on the November 6, 2001 election ballot. After the board filed a motion to dismiss and the Secretary of State filed an answer, Newell and the Secretary of State filed briefs, and Newell filed evidence pursuant to the expedited election schedule in S.Ct.Prac.R. X(9). The Ohio Education Association filed an amicus curiae brief in support of Newell. This cause is now before the court for a consideration of the merits.

Newell seeks a writ of prohibition to prevent the submission of the issues repealing the school district levies to the electorate at the November 6, 2001 general election. In order to be entitled to the requested writ of prohibition, Newell must establish that (1) the board is about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of the law exists. Stutzman v. Madison Cty. Bd. of Elections (2001), 93 Ohio St.3d 511, 757 N.E.2d 297.

Despite the board's contentions to the contrary,² it exercised quasi-judicial authority by denying Newell's protest following an R.C. 3501.39 hearing that included the sworn testimony of the board's deputy director. Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 37, 671 N.E.2d 1, 3; State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893, 897. And Newell has no other adequate remedy in the ordinary course of law to challenge the submission of the issues to the electorate. Christy, 77 Ohio St.3d at 37,671 N.E.2d at 3.

Therefore, at issue in this case is whether the board's exercise of quasi-judicial power in denying Newell's protest and placing the issues on the November 6 ballot is unauthorized. The board's decision is legally unauthorized if Newell establishes that the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 757 N.E.2d 319. Newell contends that the board abused its discretion and clearly disregarded applicable law, including R.C. 3501.38(E), by denying his protest and placing the issues on the November 6 ballot.

We need not address Newell's claims. Both the board of elections and the Secretary of State assert that this case is barred by laches. As we recently observed, "[w]e have consistently required relators in election cases to act with the utmost diligence." State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d 522, 757 N.E.2d 307. A relator seeking extraordinary relief in an election-related matter bears the burden of establishing that the relator acted with the required diligence, and if the relator fails to do so, laches may bar the action. State ex rel. Hills Communities, Inc. v. Clermont Cty. Bd. of Elections (2001), 91 Ohio St.3d 465, 467, 746 N.E.2d 1115, 1117-1118.

Newell did not satisfy this burden here. He waited twenty days after the petitions were filed on August 21 to file his September 10 protest, and he then waited another fourteen days following the board's September 27 decision to file this action for extraordinary relief. See State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, 245, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775, 777 ("`we have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election...