State ex rel. Smart v. McKinley

• Decision Date: 29 October 1980
• Docket Number: No. 80-1423,80-1423
• Citation: 412 N.E.2d 393,64 Ohio St.2d 5,18 O.O.3d 128
• Parties: , 18 O.O.3d 128 The STATE ex rel. SMART et al., v. McKINLEY, Judge.
• Court: Ohio Supreme Court

Page 5

64 Ohio St.2d 5

412 N.E.2d 393, 18 O.O.3d 128

The STATE ex rel. SMART et al., v. McKINLEY, Judge.

No. 80-1423.

Supreme Court of Ohio.

Oct. 29, 1980.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Samuel Krugliak and William I. Kohn, Canton, for Smart.

James R. Unger, Pros. Atty., for Stark County Bd. of Elections.

Donald C. Steiner, Canton, for respondent.

PER CURIAM.

Since the November 4 general election is less than one week away, this proceeding was properly brought as an original action in this court. Under normal circumstances, an appellate process would last well past the election. Similarly, under normal circumstances, this court is extremely reluctant in entertaining an original action when there is an adequate remedy at law available. State ex rel. Dormody v. McClure (1977), 50 Ohio St.2d 335, 364 N.E.2d 278; Transairco v. Common Pleas Court (1976), 45 Ohio St.2d 27, 340 N.E.2d 395; State ex rel. Peto v. Thomas (1970), 24 Ohio St.2d 38, 263 N.E.2d 248. But, as we stated in State ex rel. Tully v. Brown (1972), 29 Ohio St.2d 235, 237, 281 N.E.2d 187, the relator need not follow a suicidal course under the "ordinary course of the law" doctrine. Thus, we feel compelled to entertain the instant action.

Respondent, in his opinion enjoining Smart's name from appearing on the ballot, states that " * * * there exists in this case a compelling state interest in requiring all candidates for the unexpired term to file on time in order to permit the Boards of Elections involved and the Secretary of State time to perform the administrative functions set forth in * * * " the Revised Code. It is anomalous that relators state, in their brief, that " * * * both the Secretary of State of Ohio and the Stark County Board of Elections expressly denied that there existed a compelling state interest such that they would be justified in refusing to certify * * * Smart's candidacy."

The last paragraph of R.C. 3513.31 provides the procedure for nominating candidates for an office when the person holding the office dies or resigns that office "subsequently to the one-hundredth day before the day of a primary election and prior to the fortieth day before the day of the next general election."

In Ramsayer v. Celebrezze, Jr., supra, the federal district court held that this provision, insofar as it forbade the placing of independents on the ballot, is unconstitutional. Respondent did not deny this but rather held that at the least the 65-day limitation contained in R.C. 3513.30, the statute regarding candidate withdrawal, should be used. He further held, in effect, that this limitation, which relator had not complied with, is constitutional.

It is not clear what period of limitation applies. A 65-day period cannot apply when an officeholder vacates the office 40 days before the election.

The board of elections, in its discretion, decided to place Smart's name on the ballot for the unexpired seat. In the absence of fraud, corruption, or an abuse of discretion, that decision should not be overturned. See State ex rel. Gongwer v. Graves (1914), 90 Ohio St. 311, 107 N.E. 1018. The board of elections was faced with a difficult situation due to the recent federal district court decision in Ramsayer, supra, and it has not been demonstrated that the board's decision was tainted with fraud, corruption, or an abuse of discretion.

In State ex rel. Gongwer, supra, we...