State ex rel. The Limited, Inc. v. Franklin Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. The Limited, Inc. et al. v. Franklin County
Board of Elections.
[Cite as State ex rel. The Limited, Inc. v. Franklin Cty. Bd.
of Elections (1993), Ohio St.3d .]
Elections -- Tie vote broken by designate of Secretary of State
-- R.C. 111.04 -- Reviewability of decision -- R.C.
3501.11.
(No. 93-587 -- Submitted and decided April 14, 1993 --
Opinion announced June 23, 1993.)
In Mandamus and Prohibition.

Squire, Sanders & Dempsey, David J. Young and C. Craig
Woods; Smith & Hale, Harrison W. Smith, Jr. and Ben W. Hale,
Jr., for relator The Limited, Inc.
Lucas, Prendergast, Albright, Gibson & Newman and Robert
E. Albright, for relators Tuttle Road Ltd. Partnership et al.
Michael Miller, Franklin County Prosecuting Attorney, and
Harland H. Hale, Assistant Prosecuting Attorney, for respondent
Franklin County Board of Elections.
Wright & Logan Co., L.P.A., and J. Anthony Logan; and John
J. Duffey, Sr., for intervenors Saddlebrook Civic Association,
Terri L. Gregor, Sandy Fiehrer, Ballymead Civic Association,
Robert Hess, Todd James Zimmerman, and Families Against Forced
Zoning.
Lee I. Fisher, Attorney General, Andrew I. Sutter and
Robert A. Zimmerman, Assistant Attorneys General, for
intervenor Bob Taft, Secretary of State.
Aristotle R. Matsa, for amici curiae Designated Committee
for the Filing of the Petition for Referendum of Columbus City
Council Ordinance No. 2565-92, Shannon Heights Kilbannon
Kildaire Civic Association, et al.

This cause came on to be heard by the court on the
complaint of the relators; the answer of the respondent; the
agreed statement of facts and stipulation of exhibits by the
parties; the transcript of proceedings; the briefs of the
parties and intervenors Saddlebrook et al.; and the motions to
file pleadings and briefs by intervenor Secretary of State and

amici curiae, which are, sua sponte, granted.
The court finds:
1. That the Fourth Defense of respondent places at issue
that "The Complaint is barred by the decision of the Ohio
Secretary of State's Office which is final pursuant to Ohio
Revised Code {3501.11."
2. That R.C. 3501.11 reads, in part, that "[i]n all cases
of a tie vote or a disagreement in the board, if no decision
can be arrived at, the director or chairman shall submit the
matter in controversy to the secretary of state, who shall
summarily decide the question and his decision shall be
final." (Emphasis added.)
3. That the respondent, pursuant to R.C. 3501.11 and its
tie vote, did certify the question at issue to the Secretary of
State for his determination and tie-breaking vote.
4. That the Secretary of State, finding he had a personal
conflict, did properly designate, pursuant to R.C. 111.04, his
Assistant Secretary of State to cast the required tie-breaking
vote.
5. That the Assistant Secretary of State cast his vote
and ruled that the rezoning issue in question should be placed
on the election ballot and voted on at the election to be held
on May 4, 1993.
6. That, pursuant to R.C. 3501.11, the decision of the
Secretary of State (or his designate) is final and not subject
to appeal. In addition, there is no showing by relators that
the decision of the Secretary of State (or his designate)
involved any fraud, corruption, abuse of discretion, or clear
disregard of statutes or court determinations to warrant
granting the extraordinary writs of mandamus and/or
prohibition. See State ex rel. Ruehlmann v. Luken (1992), 65
Ohio St.3d 1, 598 N.E.2d 1149; State ex rel. White v. Franklin
Cty. Bd. of Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152;
and State ex rel. White v. Franklin Cty. Bd. of Elections
(1992), 65 Ohio St.3d 45, 600 N.E.2d 656.
Accordingly, IT IS HEREBY ORDERED by the court that the
request of relators for writs of mandamus and/or prohibition be
denied and that the cause herein is dismissed.
A.W. Sweeney, Acting C.J., Shannon,O'Neill, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.
Douglas, J., concurs separately.
Raymond E. Shannon, J., of the First Appellate District,
sitting for Moyer, C.J.
Joseph E. O'Neill, J., of the Seventh Appellate District,
sitting for Wright, J.
Douglas, J., concurring. I concur with the judgment of
the majority but do not agree with some of the language
contained in the opinion. Today's decision conflicts with the
entry issued by this court in this case on April 14, 1993.
That judgment was a unanimous decision of this court. Now, for
some reason, the terms of that judgment are being altered.
R.C. 3501.11 makes the tie-breaking vote of the Secretary
of State, in matters where a county board of elections is
deadlocked, final. I would follow the law as set forth in R.C.
3501.11 and I continue to adhere to the position that I set
forth in State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d
1, 598 N.E.2d 1149, State ex rel. White v. Franklin Cty. Bd. of

Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152 ("White I"),
and State ex rel. White v. Franklin Cty. Bd. of Elections
(1992), 65 Ohio St.3d 45, 600 N.E.2d 656 ("White II").