State ex rel. Todd v. Felger

• Decision Date: 20 November 2007
• Docket Number: No. 2007-1002.,2007-1002.
• Parties: The STATE ex rel. TODD, Appellee, v. FELGER, Mayor, et al., Appellants.
• Court: Ohio Supreme Court

877 N.E.2d 673

116 Ohio St.3d 207

2007-Ohio-6053

The STATE ex rel. TODD, Appellee, v. FELGER, Mayor, et al., Appellants.

No. 2007-1002.

Supreme Court of Ohio.

Submitted October 16, 2007.

Decided November 20, 2007.

Allison & Blasdell and J. Bradley Allison, East Palestine, for appellee.

Judith A. Carlin, Solicitor, Village of New Waterford, for appellants.

PER CURIAM.

{¶ 1} This is an appeal from a judgment granting a writ of mandamus to compel a mayor and a village council to review a petition requesting a special election on the surrender of the village's corporate powers and to fix an election date if signatures on the petition are determined to be sufficient. Because the mandamus claim was rendered moot when the election date requested for the corporate-powers issue passed before the case was resolved, we reverse the judgment of the court of appeals and deny the writ.

{¶ 2} Appellee, Kevin B. Todd, is a registered voter and taxpayer residing in appellant village of New Waterford. On May 31, 2006, Todd filed a petition and a proposed ordinance with Michael A. Harold, the fiscal officer and clerk for the village. The petition, which consisted of nine pages and contained 182 signatures, requested pursuant to R.C. 703.20 that the New Waterford Village Council order an election to determine whether the village's corporate powers should be surrendered. The ordinance proposed a November 7, 2006 special election "to vote upon the question of surrendering the corporate powers of the Village and of causing the municipality to become part of Unity Township." A certified copy of the petition was not filed with the fiscal officer/village clerk or any other village official prior to circulation of the petition.

{¶ 3} On June 6, 2006, a committee consisting of three of the six village council members began to review the petition. From its initial review, the committee identified potential problems with 18 signatures.

{¶ 4} At a special council meeting on June 7, 2006, the village solicitor advised the council that the petitioner's failure to file a certified copy of the proposed ordinance for special election before circulating it rendered the petition invalid. Based on the solicitor's opinion, the council voted unanimously to reject the petition. The fiscal officer/clerk did not forward the petition to the Columbiana County Board of Elections, and the board did not determine the number of valid signatures on the petition. The mayor and village council did not set the requested special election.

{¶ 5} On June 23, 2006, several months before the November 7, 2006 election date requested in the proposed ordinance, Todd filed a petition in the Court of Appeals for Columbiana County requesting a writ of mandamus to compel the New Waterford Village Council to canvass the petition filed under R.C. 703.20 to determine whether it contains sufficient valid signatures and, if it does, to "forthwith and immediately" direct the board of elections to hold a special election on the petition to surrender the village's corporate powers pursuant to R.C. 703.20. Todd named appellants, the village and its fiscal officer/clerk, its council members, and its mayor, as respondents. In September 2006, after appellants filed answers, Todd requested an expedited briefing schedule so that the issue could be certified to appear on a February 6, 2007 election ballot. The court of appeals did not rule on the motion, and the parties submitted motions for summary judgment, which the court denied in January 2007. State ex rel. Todd v. Felger, Columbiana App. No. 06 CO 38, 2007-Ohio-731, 2007 WL 549577.

{¶ 6} The parties then filed supplemental motions for summary judgment. In April 2007, the court of appeals granted a writ of mandamus to compel the mayor and the village council to canvass the petition and determine the sufficiency of the signatures and—if the signatures are found to be sufficient and in compliance with R.C. 703.20—to fix a date for a special election concerning the surrender of the village's corporate powers.

{¶ 7} This cause is now before the court upon an appeal as of right by the village, its fiscal officer/clerk, its mayor, and its council members.

Mootness

{¶ 8} Appellants argued both below and on appeal that Todd's mandamus claim is moot because the election date on which he originally sought to have the corporate-powers issue decided—November 7, 2006—had passed before the court of appeals rendered its decision. The court of appeals did not address this issue.

{¶ 9} In general, "election cases are moot where the relief sought is to have a name or an issue placed on the ballot and the election was held before the case could be decided." In re Protest Filed by Citizens for the Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 103, 551 N.E.2d 150; State ex rel. Bona v. Orange (1999), 85 Ohio St.3d 18, 21, 706 N.E.2d 771.

{¶ 10} Todd filed his petition in May 2006 with the fiscal officer/village clerk and also filed a proposed ordinance setting the corporate-powers issue for a November 7, 2006 special election. He commenced his mandamus action in the court of appeals in June 2006. Although R.C. 703.20 does not specify a date for the special election, the implication is that the legislative authority of the village will schedule the election for the next available date. For example, the village council cannot set a special-election date four years away. See State ex rel. Webb v. Bliss, 99 Ohio St.3d 166, 2003-Ohio-3049, 789 N.E.2d 1102, ¶ 22 (court has duty to construe statute to avoid unreasonable or absurd results); R.C. 1.47(C). Under R.C. 3501.01(D), a special election generally "may be held only on the first Tuesday after the first Monday in February, May, August, or November." When Todd filed his mandamus action, the next available date for a special election was November 2006. See R.C. 3501.02(F) ("Any question or issue * * * to be voted upon at an election shall be certified, for placement upon the ballot, to the board of elections not later than four p.m. of the seventy-fifth day before the day of the election").

{¶ 11} In September 2006, Todd filed a motion for an expedited briefing schedule in which he claimed that the next available date for a special election was February 2007. The court of appeals, however, did not render a final determination until April 2007. Because the proposed date for the election had passed, Todd's mandamus claim was moot and should have been dismissed by the court of appeals. State ex rel. Hills Communities, Inc. v. Clermont Cty. Bd. of Elections (2001), 91 Ohio St.3d 465, 467, 746 N.E.2d 1115.

{¶ 12} This is also not a case in which the merit issues raised are capable of repetition yet evade review. "`This exception [to the moot-issue doctrine] applies when the challenged action is too short in duration to be fully litigated before its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again.'" State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 13, quoting State ex rel. Dispatch Printing Co. v. Louden (2001), 91 Ohio St.3d 61, 64, 741 N.E.2d 517. Election cases are often fully litigated before the pertinent election. See, e.g., S.Ct.Prac.R. X(9), setting forth an expedited evidence and briefing schedule for writ cases filed within 90 days of the pertinent election. Like petitioners in all election cases, Todd had a duty to act with extreme diligence. See Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 15, quoting State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7 ("`Relators in election cases must exercise the utmost diligence'"). Todd instead...