State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections

• Decision Date: 30 March 1995
• Docket Number: No. 95-294,95-294
• Citation: 72 Ohio St.3d 69,647 N.E.2d 769
• Parties: The STATE ex rel. YOUNGSTOWN et al. v. MAHONING COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 69

72 Ohio St.3d 69

647 N.E.2d 769

The STATE ex rel. YOUNGSTOWN et al. v. MAHONING COUNTY BOARD OF ELECTIONS et al.

No. 95-294.

Supreme Court of Ohio.

Submitted March 21, 1995.

Decided March 30, 1995.

In 1993, Section 5 of the Youngstown Home Rule Charter provided in pertinent part that "[t]he legislative power of the City, except as reserved to the people by this Charter, by means of the initiative and referendum, shall be vested in a council of seven members, elected by wards, one from each ward, and for a term of two years." On July 21, 1993, the City Council of Youngstown approved placing on the November 2, 1993 general election ballot a proposed charter amendment to modify Section 5 as follows:

"The legislative power of the City, except as reserved to the people by this Charter, by means of initiative and referendum, shall be vested in a council of seven members, elected by wards, one from each ward, and for a maximum of two (2) complete consecutive terms of four (4) years each. He will be eligible for election after an intervening term." (Emphasis sic.)

The charter amendment contained an effective date of January 1, 1994. The charter amendment was placed on the November 2, 1993 general election ballot and was approved by the electorate.

The current members of Youngstown City Council, relators herein, were elected at the November 2, 1993 general election for terms commencing January 1, 1994. Their petitions, as well as the petitions of other candidates for city council, reflected that they were running for two-year terms, in accordance with the existing charter provision. By legal opinion dated April 13, 1994, Youngstown City Law Director, Edwin Romero, responded to a question by city council member John A. Nittoli by concluding that the charter amendment which passed in November 1993 applied to relators/city council members so that their current terms are four-year terms beginning January 1, 1994, and ending December 31, 1997, rather than two-year terms ending December 31, 1995.

On January 20, 1995, pursuant to a request made by respondent Mahoning County Board of Elections ("board"), the Mahoning County Prosecuting Attorney James A. Philomena, issued an opinion to the board in which he concluded that the charter amendment did not apply to current council members because neither the candidates that ran for city council in the May 1993 primary nor the primary voters anticipated either the term limitation or the extension of the terms of council members, i.e., the charter amendment could not apply retroactively to candidates who had already run in the primary. As a result, Philomena opined that members of city council were currently serving two-year terms.

Based on Philomena's opinion letter, the board on January 23, 1995 decided to conduct a primary election on May 2, 1995 (and, presumably, a general election on November 7, 1995) for the office of council member in each ward in Youngstown. As of February 6, 1995, three candidates had filed petitions to run for the office of city council member.

On February 9, 1995, relators, the city of Youngstown and its council members, filed a complaint seeking (1) a writ of prohibition restraining respondents, the board and its members, from conducting or holding a primary or general election until 1997 for the office of member of Youngstown City Council, and (2) a writ of mandamus ordering respondents not to conduct or hold a primary or general election until 1997 for the office of member of Youngstown City Council. We granted an alternative writ and the parties filed briefs on the merits of this cause.

McTigue & Brooks and Donald J. McTigue, Columbus, for relators.

James A. Philomena, Mahoning County Pros. Atty., and Diane Politi, Asst. Pros. Atty., for respondents.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Dennis Haines and Barry Laine, Youngstown, urging dismissal for amicus curiae, John R. Swierz.

PER CURIAM.

Initially, relators have filed a memorandum in opposition to John R. Swierz's amicus brief. Swierz is one of the candidates who has filed a petition to run for city council. Although we denied Swierz's motion to intervene because of his failure to comply with Civ.R. 24(C), his amicus brief requires no leave of court. See S.Ct.Prac.R. VI(5) and X(8). Accordingly, Swierz's brief was properly filed, and it is considered in our determination of the merits.

As to relators' mandamus claim, as respondents note, where a petition filed in this court or a court of appeals is purportedly in mandamus, but the allegations manifestly indicate that the real object is injunction, the petition does not state a cause of action for mandamus and must be dismissed for want of jurisdiction. State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1, 3, 640 N.E.2d 1136, 1137-1138; State ex rel. Walker v. Bowling Green (1994), 69 Ohio St.3d 391, 392, 632 N.E.2d 904, 905. The essence of relators' request for mandamus relief is injunctive, i.e., to enjoin respondents from holding any election for city council until 1997. Therefore, relators' mandamus claim lacks merit.

Relators also seek a writ of prohibition that requests the same relief: to enjoin respondents from holding a city council election until 1997. In order to obtain a writ of prohibition, relators must establish that (1) respondents are about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 234-235, 638 N.E.2d 541, 543.

With respect to the first requirement, respondents claim that they are not exercising either judicial or quasi-judicial power. Quasi-judicial authority is defined as " 'the power to hear and to determine controversies between the public and individuals which require a hearing resembling a judicial trial * * *.' " State ex rel. Hensley v. Nowak (1990), 52 Ohio St.3d 98, 99, 556 N.E.2d 171, 173, citing State ex rel. Methodist Book Concern v. Guckenberger (1937), 57 Ohio App. 13, 16-17, 9 O.O. 30, 31, 11 N.E.2d 277, 279, affirmed (1937), 133 Ohio St. 27, 9 O.O. 432, 10 N.E.2d 1001; State ex rel. Delaware Cty. Amphitheater Action Commt. v. Ohio Dept. of Liquor Control (1994), 94 Ohio App.3d 680, 682, 641 N.E.2d 764, 765. The act of placing issues on the ballot is ministerial rather than quasi-judicial, so prohibition will not lie to prevent their placement. State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 337, 617 N.E.2d 1120, 1123; State ex rel. Brookpark Entertainment, Inc. v. Cuyahoga Cty. Bd. of Elections (1991), 60 Ohio St.3d 44, 46, 573 N.E.2d 596, 599; State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 156, 19 OBR 437, 438, 484 N.E.2d 153, 155; cf. State ex rel. Barton v. Butler Cty. Bd. of Elections (1988), 39 Ohio St.3d 291, 530 N.E.2d 871, and State ex rel. Patton v. Meyers (1933), 127 Ohio St. 169, 187 N.E. 241 (Secretary of State and boards of elections exercise quasi-judicial power when determining the sufficiency of referendum petitions). One appellate court has concluded that the placement of names on a ballot is similarly ministerial rather than quasi-judicial. State ex rel. Sweet v. Hancock Cty. Bd. of Elections (Oct. 25, 1993), Hancock App. No. 5-93-43, unreported, 1993 WL 429838, dismissed on appeal as moot in 70 Ohio St.3d 1464, 640 N.E.2d 526.

Nevertheless, prohibition has been held to be an appropriate remedy to prevent the Secretary of State or a board of elections from placing on a ballot the names of candidates whose names may not lawfully be placed there. State ex rel. Newell v. Brown (1954), 162 Ohio St. 147, 54 O.O. 392, 122 N.E.2d 105, paragraph two of the syllabus; State ex rel. Fite v. Saddler (1991), 62 Ohio St.3d 170, 172, 580 N.E.2d 1065, 1066. However, both Newell and Fite were cases in which statutory written protests against specific candidates were filed with the boards of elections, which meant that theboards were required to hold quasi-judicial hearings on the protests. See R.C. 3513.05 and 3501.39.

There is no evidence here that any written protest has been filed against any candidate. Moreover, a written protest under R.C. 3501.39 and/or 3513.05 would be inapplicable, since relators' objection is not against the qualifications of particular candidates, but instead assails the entire 1995 city council election, i.e., relators/city council members attack even their own ability to be candidates for the 1995 election.

Respondents' decision to conduct the city council election in 1995 for terms commencing in January 1996 was thus not the appropriate subject for a statutory protest. Therefore, no hearing was required. Since no hearing resembling a judicial trial was either required or conducted, respondents' decision to conduct the election was ministerial rather than quasi-judicial. Fite, Newell, and State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 591 N.E.2d 1194, are distinguishable, since written protests were filed, thereby requiring hearings and the exercise of quasi-judicial authority. Other cases have suggested the propriety of a writ of prohibition to prevent the Secretary of State or boards of elections from placing on a ballot the names of candidates that may not lawfully be placed there, even where the facts do not expressly indicate the filing of a protest. However, the writ was denied in these cases for other reasons, and there was no analysis of whether the challenged decisions were ministerial or quasi-judicial. See, e.g., State ex rel. Barth v. Hamilton Cty. Bd. of Elections (1992), 65 Ohio St.3d 219, 602 N.E.2d 1130; State ex rel. Smith v. Hummel (1946), 146 Ohio St. 341, 32 O.O. 416, 66 N.E.2d 111; State ex rel. Stanley v. Bernon (1933), 127 Ohio St. 204, 187 N.E. 733. Accordingly, since responden...