Zielasko v. State of Ohio

• Decision Date: 18 August 1988
• Docket Number: No. C87-2884-A.,C87-2884-A.
• Citation: 693 F. Supp. 577
• Parties: Gus W. ZIELASKO, Plaintiff, v. The STATE OF OHIO, Defendant.
• Court: U.S. District Court — Northern District of Ohio

693 F. Supp. 577

Gus W. ZIELASKO, Plaintiff, v. The STATE OF OHIO, Defendant.

No. C87-2884-A.

United States District Court, N.D. Ohio, E.D.

August 18, 1988.

COPYRIGHT MATERIAL OMITTED

Donald C. Steiner, Tarun L. Heath, Canton, Ohio, for plaintiff.

Ronald E. Stocker & Deborah A. Dawson, Asst. Stark Co. Pros. Attys., Canton, Ohio, Andrew Sutter, Asst. Atty. Gen., Columbus, Ohio, for defendant.

ORDER

SAM H. BELL, District Judge.

Plaintiff Gus W. Zielasko is a former member of the judiciary of Stark County, Ohio. He and plaintiff Nancy Bowman are registered voters in that county. They filed the complaint in this matter on November 4, 1987, alleging a violation of their civil rights pursuant to 42 U.S.C. § 1983 and seeking a declaration that Article IV, Section 6(C) of the Ohio Constitution is unconstitutional. This provision precludes the election or appointment of any person to a state judicial office who has attained the age of seventy years.

The county defendants, Thomas Carr, Clerk of the Stark County Board of Elections and the Stark County Board of Elections, answered the complaint. See Amended Answer filed December 16, 1987. They assert a denial of parts of plaintiffs' complaint plus the following affirmative defenses: failure to state a cause of action upon which relief can be granted; lack of jurisdiction over the subject matter; and lack of jurisdiction over the parties.

The state defendants, the State of Ohio and Sherrod Brown, Ohio Secretary of State, have answered the complaint and have moved to dismiss on November 30, 1987. Based upon leave granted by this court on April 13, 1988, plaintiffs responded in opposition to the motion to dismiss on May 11, 1988. Defendants have since submitted a reply brief and the question before the court is ripe for resolution.

When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is constrained to accept as true the allegations of a complaint. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983), Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1065 (6th Cir.1984). To dismiss the complaint against defendant, the court would have to find it beyond doubt that the plaintiff can prove no set of facts in support of its claim which would justify the relief sought. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Two days after plaintiffs responded to defendants' motion to dismiss, they filed a motion to amend their complaint. The amended complaint does not change the substantive aspects of their original complaint except that it adds certain facts identifying plaintiff Zielasko's party and the judicial office he is seeking; further, it adds a request for declaratory judgment concerning the constitutionality of Article IV, section 6(C) of the Ohio Constitution; and it omits the claims that this provision of Ohio law is an ex post facto law and that it violates plaintiff Zielasko's rights guaranteed by the twenty-sixth amendment. The court will grant plaintiffs' motion in fairness to them and with the understanding that defendants' previously filed motion to dismiss applies with equal force to the substantive claims of the amended complaint. Therefore, inasmuch as there has been no request to amend defendants' brief or motion in light of the requested amendment of the complaint, the motion to dismiss will be considered in light of the amended complaint. Defendants' arguments made in relation to plaintiffs' claims of twenty-six amendment and ex post facto law violations, however, are mooted by the omission of these claims in the amended complaint.

The following facts are alleged in the complaint and are taken as true for the purpose of this motion:

1. Plaintiff Zielasko was born on June 15, 1915. Amended Complaint ¶ 2.

2. Plaintiff Zielasko desires to become a Republican candidate for municipal court judge in Canton, Ohio, for the term commencing January 1, 1990. Amended Complaint at ¶ 4, 7.

3. Article IV, section 6(C) of the Ohio Constitution bars any person from being elected or appointed to any judicial office if he is seventy years of age on the day before he would assume that office.

4. Plaintiff Zielasko is qualified and eligible to be a candidate for the judicial office he seeks except for the fact of his age. Amended Complaint at ¶ 4.

5. Plaintiff Zielasko has not taken out petitions or filed as a candidate for the office he seeks because he believes defendants would not accept his filings and because, in his opinion, he would be subject to criminal prosecution upon signing the declaration that he is qualified. Ohio Revised Code §§ 3513.07; 3599.36. Amended Complaint at ¶ 6.

6. Plaintiff Nancy Bowman is a registered voter in Stark County, Ohio, who votes in Republican primaries. Amended Complaint at ¶ 2.

7. Plaintiff Bowman desires to circulate and/or sign a petition to place plaintiff Zielasko's name in nomination for the judicial office he seeks and to thereafter vote for him. Amended Complaint at ¶ 5.

8. Plaintiff Bowman has not circulated such petitions because it is her belief they would not be accepted because of plaintiff Zielasko's age and because she would be subject to criminal prosecution by signing the form declaration. Ohio Revised Code §§ 3513.07, 3599.36. Amended Complaint at ¶ 6.

The state defendants advance different reasons to justify the relief they seek pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The first basis is that this case amounts merely to a request for an advisory opinion in that no actual case or controversy exists. Plaintiffs clearly have not circulated or submitted nominating petitions. They claim in the complaint, however, that these would be fruitless acts because the defendants would not accept them due to defendant Zielasko's age. Amended Complaint at ¶ 6. Nevertheless, the state defendants assert that the failure to petition for the office renders this case less than an actual controversy ripe for judicial resolution.

Article III of the United States Constitution provides that parties attempting to invoke federal court jurisdiction must allege an actual case or controversy. O'Shea v. Littleton, 414 U.S. 488, 493-94, 94 S.Ct. 669, 674-75, 38 L.Ed.2d 674 (1974); Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). Thus, it is a threshold requirement that a plaintiff allege that he has "sustained or is immediately in danger of sustaining some direct injury." Massachusetts v. Mellon, 262 U.S. 447, 448, 43 S.Ct. 597, 598, 67 L.Ed. 1078 (1923). Furthermore, "the injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.'" O'Shea v. Littleton, 414 U.S. at 494, 94 S.Ct. at 675 (citation omitted).

"The ripeness doctrine not only depends on the finding of a case and controversy and hence jurisdiction under Article III, but it also requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances." Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir.1985). In Pacific Gas & Electric Co. v. Energy Resources Commission, 461 U.S. 190, 200-01, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983), the Supreme Court pointed out:

The basic rationale of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements...." In Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration."

(quoting, Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)).

In the present case, defendants argue that as no action has been taken to promote Zielasko's candidacy or to secure his position on the ballot, this lawsuit is premature. Plaintiffs respond that they need not risk criminal prosecution to pursue redress of a violation of their constitutional rights.

In Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982), the Supreme Court considered whether plaintiffs who held public office had to resign before seeking higher office as required by Article III, sections 19 and 65 of the Texas constitution in order to allege a "case or controversy" as to the constitutionality of those requirements. The office holders in that case were subject to automatic resignation from their current offices upon announcing their candidacies for another elective office. The Court found that the plaintiffs who claimed that but for the provisions they were contesting they would run for office created an actual case or controversy which was neither hypothetical nor abstract. Id. at 961-62, 102 S.Ct. at 2842-43.

Plaintiffs in the instant cause contend that they, too, would have circulated petitions and filed for the municipal court position plaintiff Zielasko seeks but for the possibility of criminal prosecution if they sign the declarations contained in those exact documents. It is not, of course, that sanction which they are challenging here as unconstitutional. However, they claim that the "risk" of criminal prosecution to them as well as to the defendants if they accept the documents is of sufficient reality to render their claim an actual controversy which is neither hypothetical nor abstract.

In order to evaluate this contention the declarations the plaintiffs must sign and the relevant Ohio statutes must be reviewed. Section 3513.04 of the Ohio Revised Code requires that a candidate for party nominations file a declaration of candidacy and pay a filing fee to have his name placed...