Webb v. Lucas Cnty. Bd. of Elections
| Decision Date | 12 September 2011 |
| Docket Number | No. L–11–1209.,L–11–1209. |
| Citation | 2011 -Ohio- 4576,960 N.E.2d 503,195 Ohio App.3d 396 |
| Parties | WEBB et al., v. LUCAS COUNTY BOARD OF ELECTIONS et al. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Keith Wilkowski and Jill K. Bigler, Toledo, for relators.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell and Karlene D. Henderson, Assistant Prosecuting Attorneys, for respondents.
[Ohio App.3d 398] {¶ 1} This is an action in prohibition brought by relators, Lindsay Webb, candidate for city of Toledo Council, District Six, and five electors who have voted for Webb in the September 13, 2011 primary election, to prohibit respondents, the Lucas County Board of Elections and the four members of the board in their official capacity, from conducting a protest hearing on the protest filed by Douglas J. DeCamp, which seeks to remove Webb from the ballot for the primary election. For the reasons that follow, we grant a writ prohibiting the board from conducting a hearing on the DeCamp protest insofar as it would rule on the validity of Webb's name being placed on the primary-election ballot.
{¶ 2} 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 a 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, [Ohio App.3d 399] citing State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 629 N.E.2d 446. Because a protest hearing in election matters is a quasi-judicial proceeding, relators have established the first requirement for extraordinary relief in prohibition. See State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections (1996), 75 Ohio St.3d 44, 45, 661 N.E.2d 699.
{¶ 3} Relators must also establish that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. Relators assert that an adverse ruling from the board would require that Webb be removed from the ballot and the votes of the electors-relators “would not be counted, and they would be denied the opportunity to be represented by the person of their choosing.” We agree. Any further action in the ordinary course of the law would not provide “complete, beneficial, and speedy relief to remedy the board's unauthorized action.” Harbarger at 47, 661 N.E.2d 699. This matter was decisional on September 7, 2011, merely six days from the September 13, 2011 primary election. Neither an injunction nor a direct appeal could be finalized until after the election. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 292, 649 N.E.2d 1205. See also State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 19. (Proper to file prohibition action two months prior to time when absentee ballots were required to be printed and available for use.) Consequently, we find that relators have established this requirement for extraordinary relief in prohibition.
{¶ 4} Finally, relators assert that the board's attempt to conduct a protest hearing, initiated by DeCamp, is unauthorized pursuant to R.C. 3501.39, which provides:
{¶ 5} “(A) The secretary of state or a board of elections shall accept any petition described in section 3501.38 of the Revised Code unless one of the following occurs:
{¶ 6} “(1) A written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition is invalid, in accordance with any section of the Revised Code providing a protest procedure.
{¶ 7} “(2) A written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition violates any requirement established by law.
{¶ 8} “(3) The candidate's candidacy or the petition violates the requirements of this chapter, Chapter 3513. of the Revised Code, or any other requirements established by law.
[Ohio App.3d 400] {¶ 9} “(B) Except as otherwise provided in division (C) of this section or section 3513.052 of the Revised Code, a board of elections shall not invalidate any declaration of candidacy or nominating petition under division (A)(3) of this section after the sixtieth day prior to the election at which the candidate seeks nomination to office, if the candidate filed a declaration of candidacy, or election to office, if the candidate filed a nominating petition.
{¶ 10} “(C)(1) If a petition is filed for the nomination or election of a candidate in a charter municipal corporation with a filing deadline that occurs after the ninetieth day before the day of the election, a board of elections may invalidate the petition within fifteen days after the date of that filing deadline.
{¶ 11} (Emphasis added.)
{¶ 12} The DeCamp protest claims that Webb failed to timely file her written “acceptance of nomination” for the municipal office she seeks. In support of this argument, respondents cite the Charter for the city of Toledo, Chapter III, Section 14, which provides:
{¶ 13} “Any eligible person placed in nomination as hereinabove provided shall have his or her name printed on the ballots for the primary election if, within five (5) days after such notification, he or she shall have filed with the elections authorities a written acceptance of nomination.”
{¶ 14} In response, relators assert that Webb needed only to have “substantially complied” with the city of Toledo Charter. In support of this argument, they rely on State ex rel. Troy v. Bd. of Elections of Lake Cty. (1959), 170 Ohio St. 17, 9 O.O.2d 336, 161 N.E.2d 777, in which the Supreme Court held that “the declaration of candidacy required by [former R.C. 3513.261] to be executed by a candidate [in a municipal election] constitutes an acceptance of the nomination.” (Emphasis added.) However, the Troy court's holding was premised on the fact that “effective in 1954, the state statutes were changed and it [was] required under the provisions of Section 3513.261, Revised Code, that a written declaration of candidacy be signed by the candidate, and the prior sections requiring the written acceptance were repealed.” Id. at 18, 9 O.O.2d 336, 161 N.E.2d 777. Further, the Troy decision was silent as to whether Troy, a mayoral candidate, actually had filed a declaration of [Ohio App.3d 401] candidacy. Here, as evidenced by the stipulated facts, Webb did not file a declaration of candidacy, nor was she required to by the city charter.
{¶ 15} The city of Toledo Charter, Chapter III, Section 11, provides, “All elections provided for by this Charter, whether for the choice of officers or the submission of questions to the voters, shall be conducted by the election authorities prescribed by general laws and the provisions of the general laws of the State shall apply to all such elections except as provision is otherwise made by this Charter.” Chapter III, Section 12 of the charter requires that “candidates for Mayor and for Council to be voted for at the regular City election under the provisions of this Charter shall be nominated at a non-partisan primary election to be held on the second Tuesday after the first Monday in September * * * in such odd-numbered years.” Chapter III, Section 13, then requires that the name of the elector be placed on the ballot (for city council running in a district) if a petition, signed by not less than 50 nor more than 100 electors, is filed with the election authorities. Thereafter, Chapter III, Section 14 of the charter requires:
{¶ 16} (Emphasis added.)
{¶ 17} Therefore, we find that Troy contains an incomplete analysis on the facts presented, and therefore it is unpersuasive. Further, we need not ultimately determine the issue whether Webb substantially complied with the city of Toledo Charter. In order to determine whether prohibition is appropriate, we must address only whether the power of the board to hold a hearing to invalidate Webb's petition is unauthorized by law.
{¶ 18} Respondents argue that an error in the board's exercise of jurisdiction cannot be attacked collaterally, such as through relators' writ of prohibition. Respondents urge this court to deny the writ and permit the board to conduct a hearing to determine the validity of the DeCamp protest. We agree that the board has authority to conduct a...
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