State ex rel. Taylor v. Lucas County Bd. of Elections

• Decision Date: 22 January 1988
• Docket Number: No. L-87-385,L-87-385
• Citation: 540 N.E.2d 292,43 Ohio App.3d 176
• Parties: The STATE, ex rel. TAYLOR, Appellant and Cross-Appellee, v. LUCAS COUNTY BOARD OF ELECTIONS, Appellee; Bihn, Intervening Appellee and Cross-Appellant. *
• Court: Ohio Court of Appeals

Page 176

43 Ohio App.3d 176

540 N.E.2d 292

The STATE, ex rel. TAYLOR, Appellant and Cross-Appellee, v. LUCAS COUNTY BOARD OF ELECTIONS, Appellee Bihn, Intervening Appellee and Cross-Appellant. ^*

No. L-87-385.

Court of Appeals of Ohio, Sixth District, Lucas County.

Jan. 22, 1988.

Syllabus by the Court

1. A board of elections has no clear legal duty to not count and certify the votes of a candidate when the first challenge to the candidate's qualifications and credentials is untimely raised before the election.

2. Where a candidate is certified by the board of elections as a candidate in the primary election, then, after the primary, but before the general election, moves to another precinct within the jurisdiction, the candidate is a "qualified elector" notwithstanding the fact that she did not timely notify the board of elections of her change of residence for the purpose of voting in that election. (R.C. 3501.01[N], construed.)

William M. Connelly and Betty F. Coggin, Toledo, for appellant and cross-appellee.

R. Michael Frank, Toledo, and Anthony Pizza, Pros. Atty., for appellee.

Nick Batt, Toledo, for intervening appellee and cross-appellant.

GLASSER, Judge.

This cause is before the court on appeal from a judgment of the Lucas County Court of Common Pleas.

An overview of the procedural history between the parties will facilitate a better understanding of the issues before the court. On November 2, 1987, plaintiff-appellant, Mary A Taylor, filed a complaint in mandamus in the Court of Common Pleas of Lucas County, alleging that intervening defendant-appellee, Sandy Bihn, was ineligible to run for the office of Clerk-Auditor of the city of Oregon, Ohio, in the general election of November 3, 1987. The relief requested was a writ ordering that defendant-appellee Lucas County Board of Elections void and refuse to count any votes cast for Bihn and refuse to certify the abstract of the results of votes cast for Bihn. On the afternoon of November 2, 1987, a hearing was held before the trial court, stipulations were made as to certain facts and some election records were entered into evidence. At this same hearing, Bihn was represented by counsel who moved for leave to intervene. Said motion was subsequently granted by the court. Briefs as to the legal issues involved were submitted for the consideration of the court by Taylor, Bihn and the board.

Another hearing was held November 12, 1987. On November 18, 1987, based on the arguments of counsel, the two hearings and the pleadings and various briefs of counsel, the trial court issued a decision and journal entry ordering the mandamus action dismissed. Thereafter, both Bihn and Taylor appealed to this court. Appellant's assignments of error are specifically addressed below. Appellee's cross-appeal, however, has been presented to this court by way of countering the contentions presented in appellant's assignments of error and will therefore be treated as such.

On November 19, 1987, appellant Taylor filed a "Motion to Expedite Appeal" in this court, which was subsequently granted. The case was set down for oral argument and in a journal entry dated November 30, 1987, this court affirmed the trial court, stating that "the Board of Elections is now free to certify, pursuant to R.C. 3505.33 and 3505.38, the abstract of the results of the November 3, 1987 election of the office of Clerk-Auditor of the city of Oregon." We now take this opportunity to elaborate on said order.

Appellant has set out the following two assignments of error:

"1. The trial court erred when it ruled that plaintiff-appellant failed to establish a clear legal right to the relief sought in this action.

"2. The trial court erred when it ruled that plaintiff-appellant failed to establish a clear legal duty on the part of the defendant-appellee board of elections for which a writ of mandamus should issue."

Due to similarity of content, appellant's two assignments of error will be discussed in tandem.

Initially, we note that strong arguments have been made by intervening appellee that the original complaint was wanting in several important respects and therefore should have been dismissed. As this court stated in State, ex rel. Cosmos Broadcasting Corp., v. Brown (1984), 14 Ohio App.3d 376, 378-379, 14 OBR 481, 484, 471 N.E.2d 874, 879:

"Inasmuch as the Civil Rules apply to mandamus actions, * * * and Civ.R. 8, 10 and 15 allow for liberal construction and amendment of the pleadings, it would appear that technical rules of form should not ordinarily obstruct a merit determination of the substantive issues. That, we will proceed to do." (Citations omitted.)

Accordingly, the trial court properly accepted appellant's amended complaint and allowed this case to proceed to final disposition.

As noted supra, the remedy requested in the instant case is a writ of mandamus to the Lucas County Board of Elections to void and refuse to count any votes cast for Sandy Bihn. R.C. 2731.01 defines "mandamus" as:

" * * * a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."

In order to be entitled to a writ of mandamus, the relator must show (1) that he has a clear legal right to the relief prayed for, (2) that respondent is under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42, 8 O.O.3d 36, 37, 374 N.E.2d 641, citing State, ex rel. National City Bank, v. Bd. of Edn. (1977), 52 Ohio St.2d 81, 6 O.O.3d 288, 369 N.E.2d 1200.

The linchpin issue, therefore, is whether the board of elections has the duty to hold separate and not count the votes cast for Sandy Bihn. This same issue was discussed by the Ohio Supreme Court in State, ex rel. Kay, v. Brown (1970), 24 Ohio St.2d 105, 53 O.O.2d 284, 264 N.E.2d 908. In that case, relator, a candidate for the United States Senate, sought to prevent respondent, Secretary of State, from counting the votes cast in the November 1970 election for Howard Metzenbaum, also a candidate for the United States Senate. The court at 105-106, 53 O.O.2d at 285, 264 N.E.2d at 908-909, stated as follows:

"In this action, relator seeks to obtain a writ of mandamus to prevent respondent from counting the votes. Mandamus is remedial in nature and commands the performance of a duty enjoined by law. Relator does not seek to compel the performance of a duty, but rather to prevent respondent from performing an act. Although relator designates his action as one in mandamus, the relief he seeks is injunctive in nature. * * * Writ denied."

In the instant case, there is no clear legal duty, enjoined by law on the respondents, to not count the votes cast for Sandy Bihn. As stated in the trial court's opinion:

"It is beyond question that Ms. Bihn, by anyone's standards or interpretations, was a qualified elector last Spring and at that time she was certified by the Board to the June, 1987 primary ballot, and thereafter to the ballot for the general election. There has been no suggestion that the Board is under a continuing duty to monitor candidates' credentials under the Charter once certified. There was no request from plaintiff-relator (nor anyone else) to review Ms. Bihn's qualifications and credentials; and there has been no request, until now, to decertify her. There is no suggestion that the Board failed to act in any way. Indeed, as noted, no request for Board action in this case was ever made until eighteen hours before the election. Moreover, no one has suggested that the Board has been derelict in its duties."

Hence, because the board does not have a clear legal duty to perform the act sought by appellant, mandamus is not proper. See, generally, State, ex rel. Easton, v. Brown (1953), 160 Ohio St. 184, 51 O.O. 446, 115 N.E.2d 1; State, ex rel. Wolfe, v. Lorain Cty. Bd. of Elections (1978), 59 Ohio App.2d 257, 13 O.O.3d 258, 394 N.E.2d 321.

Notwithstanding the failure of appellant to establish a duty on the board to act in the instant case, appellant has failed to establish a right to the relief requested. As noted by the trial court, Bihn has been a continuous resident of the city of Oregon for some seventeen years or more, and through that entire period has been a registered voter at several different addresses and in several different precincts. She has voted in every general election from 1970 through 1986, inclusive, and virtually every primary election. In the spring of 1987, Bihn was certified by the board as a candidate in the June 1987 primary. In August 1987, after the primary, but before the general election, she moved to another precinct within the city. R.C. 3503.11(A), governing change of residence before an election, states in pertinent part as follows:

" * * * Any registration or change in registration made at the office of the board of elections or at a permanent registration office later than the thirtieth day preceding a special, primary or general election * * * shall be invalid for that election, but shall be valid for any subsequent election for which the registrant qualifies as an elector."

It is agreed that Bihn had until October 5, 1987 to notify the Lucas County Board of Elections of her change of address. She failed to notify the board of the change of address until October 28, 1987; thus, she was not eligible to vote in the November 3, 1987 general election. As stated in the November 12, 1987 hearing, the position of the Lucas County Board of Elections is that Bihn's status as a registered voter has been uninterrupted. According to the board, it was simply Bihn's eligibility to vote in the November election which was affected by her failure to report her change of address. We agree. The purpose of R.C. 3503.11(A) is quite clear and...