State ex rel. Stoll v. Bd. of Elections
| Decision Date | 05 February 2008 |
| Docket Number | No. 2008-0059.,2008-0059. |
| Citation | 117 Ohio St.3d 76,2008 Ohio 333,881 N.E.2d 1214 |
| Parties | The STATE ex rel. STOLL et al. v. LOGAN COUNTY BOARD OF ELECTIONS et al. |
| Court | Ohio Supreme Court |
Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, and John M. Kuhl, Columbus, for relators.
Gerald L. Heaton, Logan County Prosecuting Attorney, for respondents.
{¶ 1} This is an expedited election action for a writ of prohibition to prevent a board of elections and its members from placing a zoning referendum on the March 4, 2008 election ballot in Jefferson Township, Logan County, Ohio. Because the board and its members abused their discretion and clearly disregarded R.C. 519.12(H) by placing the zoning referendum on the ballot, we grant the writ.
{¶ 2} On September 19, 2007, the Jefferson Township Board of Trustees adopted Resolution No. 200741, which is an amendment to the township zoning resolution that establishes guidelines for the siting of wind turbine generator facilities and anemometer towers in the township. A group of citizens opposed to the amendment circulated a petition for a township zoning referendum on the resolution at the March 4, 2008 primary election.
{¶ 3} On October 14, 2007, instead of filing or presenting the referendum petition to the Jefferson Township Board of Trustees, the petitioners delivered the petition to the private residence of Tim Tillman, a Jefferson Township trustee and one of the petition signers. Tillman was aware that the referendum-petition form specified that the petition was "Rio be filed with the Board of Township Trustees within 30 days after the adoption of the amendment." The petition also included blanks for the township fiscal officer to note when the petition was filed.
{¶ 4} Nevertheless, the petition was never filed with the township fiscal officer or otherwise physically presented to or filed with the board of trustees. Tillman did not request that the petitioners pay any filing fee. Tillman kept the petition at his private residence until October 26, when, upon advice of the board's legal counsel, he delivered the petition to respondent Logan County Board of Elections for filing. The board of trustees never authorized Tillman to deliver the petition to the board of elections. On October 29, Tillman filed a statement with the board of elections acknowledging that he had received the township zoning referendum petition on October 14 and purporting to verify that "all sets of petitions were signed and dated." Tillman did not specify that he was certifying the petition to the board of elections.
{¶ 5} On October 30, at a regular meeting of the township board of trustees, Roger Brown, together with relator Robert W. Stoll and a group of other township electors interested in obtaining more information about the petition, submitted a request to the board for "copies of all written, recorded, or e-mailed records" from October 1, 2007, to October 30, 2007, pertaining to the wind turbine zoning resolution and any related referendum petition. The agenda for the October 30 meeting did not include any discussion about the referendum petition.
{¶ 6} Meeting minutes reflected the following concerning the request:
{¶ 7}
{¶ 8} According to the chairman of the board of township trustees, despite the language in the minutes, the petition was never filed with or presented to the board of trustees. Trustee Tillman recalled that at the October 30 meeting, the discussion concerning the referendum was brief and covered his delivering the petition to and filing it with the board of elections and not charging a filing fee. Trustee Tillman's recollection is consistent with that of Stoll and Brown, who specified that the discussion at the meeting included Tillman's indication that he had received a referendum petition regarding Resolution No. 200741 and had delivered it to the board of elections.
{¶ 9} At a November 27, 2007 regular meeting, the board of trustees approved the' October 30 meeting minutes. The board of trustees never reviewed or certified the petition at any public meeting.
{¶ 10} According to Trustee Tillman, he assembled "the records responsive to the public-records request the day after the October 30 meeting. But neither he nor anyone else contacted Brown. At the board's November 27 meeting, Brown asked for a response to the request, and on November 29, the township fiscal officer provided some of the requested records. The records provided did not include a complete copy of the referendum petition.
{¶ 11} Stoll eventually obtained a complete copy of the petition from the board of elections in early December.
{¶ 12} Stoll then attempted to retain counsel to determine whether there were grounds to protest the petition, but the first attorney contacted declined to represent relators, 19 township residents opposed to the referendum. On December 17, relators obtained current counsel, and they filed a written protest with the board of elections against the referendum petition on December 26, requesting a hearing at the earliest opportunity. Relators raised several grounds for their protest, including that the petition was never filed with the board of township trustees as required by R.C. 519.12(H) and that the petition was not timely reviewed and certified to the board of elections by the board of township trustees as required by R.C. 519.12(H).
{¶ 13} On January 4, 2008, the board of elections held a hearing on relators' protest. Two of the four members of the board of elections recused themselves because of potential conflicts of interest. The elections board denied the protest and certified the referendum to the ballot for the March 4, 2008 primary election, making the following findings:
{¶ 14} "1. The petition was filed with the township trustees on October 14, 2007. We accept Tim Tillman's explanation of the events.
{¶ 15} "2. The petition was approved and transmitted by the Board through a legally valid meeting:
{¶ 16} "a. On October 17, 2007, Trustee Tillman advised Chairman Paul. Blair he had received the petitions.
{¶ 17} "b. Chairman Paul Blair acknowledged that it was his responsibility to call a special meeting of the trustees and failed to do so. He further testified that the certification process was a ministerial act and had no substantive nature.
{¶ 18} "c. Trustee Tillman, upon advice of counsel, transmitted the petitions to the Board of Elections within fourteen (14) days of receipt as required by statute.
{¶ 19} "3. The Jefferson Township Board of Trustees met on October 30, 2007, and discussed the procedures that had been followed in transmitting the petitions to the Board of Elections and ratified, thereby certifying, the petitions.
{¶ 20}
{¶ 21} Five days later, relators filed this expedited election action for a writ of prohibition to prevent respondents, the board of elections and its members, from certifying the referendum petition to the ballot and from submitting the zoning amendment to the electorate. The board and its members filed an answer, and the parties filed evidence and briefs pursuant to the expedited election schedule in S.Ct.Prac.R. X(9).
{¶ 22} This cause is now before the court for our consideration.
{¶ 23} The elections board and its members assert that this election case is barred by laches because relators delayed 73 days from the October 14 date that the referendum petition was delivered to Tillman's home to file their protest in the board of elections challenging the petition.
{¶ 24} "We have consistently required relators in election cases to act with the utmost diligence." Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19. "If relators do not exercise the required diligence, laches may bar the action for extraordinary relief in an election-related matter." State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 20. "The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party." State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 145, 656 N.E.2d 1277.
{¶ 25} An unjustified delay in submitting a protest in an election case can result in laches. Mason City School Dist. v. Warren Cty. Bd. of Elections, 107 Ohio St.3d 373, 2005-Ohio-5363, 840 N.E.2d 147, ¶ 13-21. Relators, however, did not unreasonably delay in submitting their protest. They justifiably waited until November 29 to receive a response to their public-records request for information concerning the petition. They also reasonably waited until early December for the board of elections to provide a complete copy of the petition after the board of township trustees failed to do so. Further delay until mid-December was reasonably attributable to their attempts to obtain legal counsel. See, e.g., State ex ml. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, 1110. After eventually securing their current counsel, they promptly submitted their protest. Notably, even though the issue of laches was, raised at the protest hearing, the board of elections did not decide the protest on this basis.
{¶ 26} Moreover, any...
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