State ex rel. White v. Franklin Cty. Bd. of Elections

• Decision Date: 02 October 1992
• Docket Number: No. 92-1809,92-1809
• Citation: 600 N.E.2d 656,65 Ohio St.3d 45
• Parties: The STATE ex rel. WHITE et al. v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 45

65 Ohio St.3d 45

600 N.E.2d 656

The STATE ex rel. WHITE et al. v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.

No. 92-1809.

Supreme Court of Ohio.

Submitted and Decided Oct. 2, 1992.

Relators are Dennis White, the Democratic nominee for Franklin County Recorder, and Leonard Hart, a registered Republican elector in Franklin County who voted in the June 2, 1992 primary election. Respondents are the Franklin County Board of Elections and its individual members, Secretary of State Bob Taft, and Joseph W. Testa. Recently, in State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152 ("White I"), we granted relators' request for a writ of mandamus and ordered the board of elections to count primary votes cast for Testa as the Republican nominee for Franklin County Recorder and to certify the results of that election, even though Testa had filed a statement of his withdrawal as a candidate for that office. Now, relators challenge the board's certification of Testa as the Republican nominee for Franklin County Auditor to appear on the November 3, 1992 general election ballot. They seek writs of prohibition and mandamus (1) to prevent the board from accepting Testa's nomination for auditor and placing his name on the ballot, and (2) to compel the board to issue a certificate of nomination to Testa as the Republican nominee for county recorder.

The evidence submitted in this case establishes the following.

Testa was the only candidate to file a declaration of candidacy for the Republican nomination for county recorder. The board certified his candidacy for the primary ballot on February 27, 1992, but Testa filed a statement of withdrawal on May 15, 1992. The statement came after absentee ballots had been sent out and too late for his name to be taken off the ballot.

On May 14 and 15, 1992, respectively, the Franklin County Republican Party Central Committee appointed and certified Testa to immediately fill a vacancy in the office of county auditor pursuant to R.C. 305.02. Also on May 14 and 15, 1992, respectively, the central committee nominated and certified Testa as the Republican candidate in the general election for the unexpired term for the office of county auditor pursuant to R.C. 3513.31.

White and Hart protested Testa's statement of withdrawal on May 15 and 22, 1992, respectively. The board heard White's protest on May 18, 1992 and voted in a tie on motions to either deny the withdrawal or, if withdrawal is approved, to unofficially count the votes for Testa, but not certify the results. On May 27, 1992, the Secretary of State broke the tie, voting to allow the withdrawal.

In addition to the protests against Testa's statement of withdrawal as a candidate for recorder, White and Hart protested Testa's county auditor nomination on May 15 and 22, 1992, respectively. On July 7, 1992, the board certified Testa to appear on the general election ballot as the Republican nominee for county auditor.

The board complied with the order in White I by certifying, on September 2, 1992, that 44,012 primary votes were cast in favor of Testa as the Republican nominee for county recorder. Also on September 2, 1992, the board voted in a tie on a motion not to issue Testa a certificate of nomination as the Republican county recorder nominee, and on September 3, 1992, the Secretary of State broke the tie, voting against issuing the certificate of nomination for that office.

Donald J. McTigue, Columbus, for relators.

Michael Miller, Pros. Atty., and Harland H. Hale, Asst. Pros. Atty., for respondents Franklin County Bd. of Elections and its members.

Lee I. Fisher, Atty. Gen., and Cherry Lynne Poteet, Asst. Atty. Gen., for respondent Secretary of State.

Chester, Hoffman, Willcox & Saxbe and Donald C. Brey, Columbus, for respondent Joseph W. Testa.

PER CURIAM.

Relators argue that the Secretary of State and board of elections abused their discretion and disregarded the law, such that writs of prohibition and mandamus should issue to overturn their decisions, which are otherwise final. State ex rel. Higgins v. Brown (1960), 170 Ohio St. 511, 11 O.O.2d 322, 166 N.E.2d 759, paragraph two of the syllabus; State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 175, 5 O.O.3d 381, 382, 367 N.E.2d 879, 880; State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 14, 591 N.E.2d 1194, 1196. With respect to prohibition, relators claim that Testa must be considered to have been a candidate for county recorder "until at least the close of voting at the primary election," that he was, at the same time, the Republican nominee for county auditor, an incompatible office, R.C. 3.11 and 319.07, ¹ and, therefore, that the board improperly certified him as a candidate for county auditor on the general election ballot. With respect to mandamus, they contend that the board must issue Testa a certificate of nomination for county recorder because R.C. 3513.22 provides that "[e]lection officials, who are required to declare the results of primary elections, shall issue to each person declared nominated for * * * an office an appropriate certificate of nomination * * *."

The Secretary of State responds that, in view of White I, this action should be dismissed on the basis of res judicata. He relies on the principle of merger, which prevents a successful claimant from recovering again on the same cause of action against the same party or a party in privity, Whitehead v. Gen. Tel. Co (1969), 20 Ohio St.2d 108, 112-113, 49 O.O.2d 435, 437-438, 254 N.E.2d 10, 13, and the rule that a judgment is conclusive, not only as to what was raised and determined in the action, but also as to all germane matters that might have been raised and determined. Norwood v. McDonald (1943), 142 Ohio St. 299, 312, 27 O.O. 240, 246, 52 N.E.2d 67, 74; State ex rel. Ohio Water Serv. Co. v. Mahoning Valley Sanitary Dist. (1959), 169 Ohio St. 31, 8 O.O.2d 1, 157 N.E.2d 116, paragraph one of the syllabus; Stromberg v. Bratenahl Bd. of Edn. (1980), 64 Ohio St.2d 98, 100, 18 O.O.3d 343, 344, 413 N.E.2d 1184, 1186. He essentially argues that relators have split a single cause of action and that the entire cause must be merged into the judgment in White I, thereby eliminating relators' claim for further relief.

We disagree. While the Secretary of State, who was not a party in White I, arguably is a party in privity with the board of elections, the respondent in that case, see Johnson's Island, Inc. v. Danbury Twp. Bd. of Twp. Trustees (1982), 69 Ohio St.2d 241, 244-245, 23 O.O.3d 243, 245, 431 N.E.2d 672, 675, this is not the same cause of action. The most accurate test for deciding if two cases are based on the same cause of action is whether different proof is required to sustain them. Norwood, supra, 142 Ohio St. at 311, 27 O.O. [600 N.E.2d 659] at 245, 52 N.E.2d at 73. We acknowledge that in White I, there was evidence to establish that the board had certified Testa to appear on the general election ballot as the Republican nominee for county auditor; however, this fact was not necessary for us to hold that the election laws required the board to count votes cast for him in the primary election for nomination as recorder and to certify the election results. Moreover, there was no evidence in White I to establish that the board, if ordered to perform these duties, would deadlock on whether to issue Testa a certificate of nomination as the Republican candidate for county recorder, or that the Secretary of State would break the deadlock by voting against issuing the certificate.

The Secretary of State also argues, as do the other respondents, that relators' failure to bring all their causes of action at once caused delay and material prejudice. This argument has merit.

We have routinely dismissed complaints or otherwise denied extraordinary relief in election-related cases due to laches. See, e.g., State ex rel. Lightle v. Glass (1983), 8 Ohio St.3d 1, 8 OBR 72, 455 N.E.2d 1275 (writ of mandamus to certify resolutions for placement on ballot denied because complaint filed approximately three weeks before election); State ex rel. Bargahiser v. Richland Cty. Bd. of Elections (1968), 14 Ohio St.2d 129, 43 O.O.2d 238, 237 N.E.2d 133 (writ of mandamus to place candidates on ballot denied because complaint filed approximately three weeks before election); State ex rel. Weldon v. Franklin Cty. Bd. of Elections (1964), 176 Ohio St. 92, 26 O.O.2d 438, 197 N.E.2d 802 (dismissal of prohibition complaints to prevent putting candidates' names in voting machines and counting absentee ballots when complaints filed thirty-three days after protests decided); State ex rel. Schwartz v. Brown (1964), 176 Ohio St. 91, 26 O.O.2d 438, 197 N.E.2d 801 (dismissal of mandamus complaint to place candidate on ballot where complaint filed after ballot form certified); State ex rel. Hawke v. Myers (1936), 132 Ohio St. 18, 7 O.O. 10, 4 N.E.2d 397 (dismissal of mandamus complaint to place candidates on ballot where complaint filed after absentee ballots in use); State ex rel. Friedlander v. Myers (1934), 128 Ohio St. 568, 1 O.O. 167, 192 N.E. 737 (writ of mandamus denied for same reason); State ex rel. Winterfeld v. Lucas Cty. Bd. of Elections (1958), 167 Ohio St. 531, 5 O.O.2d 208, 150 N.E.2d 420 (dismissal of prohibition complaint to prevent placement of annexation issue on ballot where complaint filed less than three weeks before election); and State ex rel. Peirce v. Stark Cty. Bd. of Elections (1958), 168 Ohio St. 249, 6 O.O.2d 339, 153 N.E.2d 393 ...