State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d
523, 2000-Ohio-108.]
THE STATE EX REL. DEMALINE ET AL. v. CUYAHOGA CTY. BD. OF ELECTIONS ET AL.
[Cite as State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio
St.3d 523.]
Elections -- Rezoning of property to Planned Unit Development District placed
on November 7, 2000 ballot -- Mandamus sought to compel new ballot
language -- Cause barred by laches, when.
(No. 00-1793 -- Submitted October 31, 2000 -- Decided November 2, 2000.)
IN MANDAMUS.
__________________

Per Curiam. In order to develop a seventy-five-acre parcel of land it
owns in the city of Westlake, intervening respondent, Crocker Park, L.L.C.
("Crocker"), applied to rezone its property from its present zoning classifications
to Planned Unit Development District.

On July 20, 2000, the Westlake City Council enacted Ordinance No. 2000-
68, which rezoned the Crocker property from Single-Family District, Multi-
Family District, and Planned Unit Development District to Planned Unit
Development District and authorized uses for the rezoned property in accordance
with an incorporated preliminary development plan. Pursuant to Section 13(a),
Article IV of the Westlake Charter, the ordinance also directed its submission to
Westlake electors at the November 7, 2000 election. Section 6 of Ordinance No.
2000-68 specified the following ballot language:

"Be it ordained by the Council of the City of Westlake * * *:

"Section 6. That the ballot submitting the question of approval of the
aforesaid Ordinance shall read as follows:
"PROPOSED ORDINANCE NO. 2000-68
"CITY OF WESTLAKE

"A majority vote is necessary for passage.

SUPREME COURT OF OHIO

"Shall Ordinance No. 2000-68, providing for the amendment of the Zone
Map of the City of Westlake, which Zone Map is part of the Zoning Code of the
City of Westlake, by changing the zoning of certain land located along Detroit
and Crocker Roads, being all of Permanent Parcel Nos. 211-25-001, 211-25-004,
211-26-001, 211-27-037, 211-29-005 and 211-29-014 from Single Family
District, Multi-Family District and Planned Unit Development District to Planned
Unit Development District be approved?"

The Westlake City Council also enacted Ordinance No. 2000-71 on July
20. Ordinance No. 2000-71 amends various sections of Chapter 1212 of the
Westlake Zoning Code, which sets forth requirements for the Planned Unit
Development District classification.

On August 15, Stephen L. Huber, a Westlake elector, by and through the
same attorneys that represent relators, various other Westlake electors, filed a
protest with respondent, Cuyahoga County Board of Elections, challenging the
placement of Ordinance No. 2000-68 on the November 7 ballot. On September 6,
Crocker served a response on Huber's attorneys in which Crocker contended that
the ordinance had amended the zoning code independently of Ordinance No.
2000-71. Relators and Huber then joined in Huber's protest and submitted a
supplement to the protest. On September 11, Crocker served relators and Huber
with a supplemental response in which it specified the scope of Ordinance No.
2000-68 as follows:

"Pursuant to Ordinance No. 2000-68, the Crocker Park land will be
rezoned to Planned Unit Development District, the Preliminary Development Plan
for Crocker Park will be approved, and Crocker Park will be permitted to develop
its land in accordance with the Ordinance as adopted. By virtue of this legislative
act by both Council and the voters, the existing requirements for a planned unit
development as set forth in Chapter 1212 of the Westlake Zoning Code will be
deemed amended as applied to the Crocker Park land, to the extent set forth on the
2

January Term, 2000
Preliminary Development Plan which is part of Ordinance No. 2000-68. * * *
The modifications which would be effected if Ordinance No. 2000-71 were
approved are not required for the effectiveness of Ordinance No. 2000-68 since
all of the operative provisions of Ordinance No. 2000-71 have been placed on the
Preliminary Development Plan which is incorporated in Ordinance No. 2000-68."

Also on September 11, the board held a hearing on relators' protest. At
the hearing, relators were represented by counsel. During the hearing, one of
Crocker's attorneys claimed that Ordinance Nos. 2000-68 and 2000-71 were
independent, i.e., the validity of Ordinance No. 2000-68 was not dependent upon
the validity of Ordinance No. 2000-71. Near the conclusion of the hearing, the
board's deputy director stated that "[i]f the protest is denied, we need the Law
Director of Westlake and the petitioners [i.e. Crocker and other initiative
petitioners on a related issue] to follow our manager of our ballot department
down so we can get the language done and send it to our vendor tonight." The
board then denied relators and Huber's protest and certified Ordinance No. 2000-
68 to the November 7 election ballot.

On September 13, relators and Huber filed an action in this court (case No.
00-1647) for a writ of prohibition to prevent the board from placing Ordinance
No. 2000-68 on the November 7 election ballot for the city of Westlake.1 On
September 24, the board approved the final proof of the ballots for the November
7 election, including the issue that places Ordinance No. 2000-68 before the
Westlake electors. The ballot language approved by the board is identical in all
material respects to the ballot language contained in Section 6 of Ordinance No.
2000-68, with the references to the zoning map as part of the Westlake Zoning
Code and to the permanent parcel numbers deleted:
"PROPOSED ORDINANCE

1. On October 11, 2000, we denied the writ in case No. 00-1647. State ex rel. Baldzicki v.
Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 736 N.E.2d 893.
3

SUPREME COURT OF OHIO
"CITY OF WESTLAKE
"A Majority Affirmative Vote is Necessary For Passage

"Shall Ordinance No. 2000-68, providing for the amendment of the Zone
Map of the City, by changing the zoning of certain land located along Detroit and
Crocker Roads, from Single Family District, Multi-Family District, and Planned
Unit Development District to Planned Unit Development District, be approved?"

The ballot language is also virtually identical to the language in the title of
the ordinance.

According to relators, they learned of the approved ballot language on
September 29, through an affidavit filed in case No. 00-1647, even though they
had requested the language from the board on September 25. In the affidavit filed
in case No. 00-1647, Westlake Director of Planning Robert M. Parry stated that
approval by electors of Ordinance No. 2000-68 would not merely rezone the
property, but would also approve the preliminary development plan and amend
the zoning code for that specific property. At an October 2 board hearing, which
involved protests against referendum petitions on two ordinances, including
Ordinance No. 2000-68, Westlake Law Director David Harbarger stated that in
voting on Ordinance No. 2000-68, electors would not be voting simply on
rezoning, they would also be voting on the development plan itself as well as
amendments to the zoning code for the Crocker property.

On October 3, relators and Huber filed a written protest with the board
objecting to the ballot language that the board had approved for submission to the
electorate at the November 7 election. Relators and Huber claimed that based on
Harbarger's statements at the October 2 board hearing, the ballot language did not
convey to voters an intelligent idea about the scope of Ordinance No. 2000-68.
They also requested an expedited hearing on the protest. Additionally on October
3, absentee ballots for Westlake were printed and ready for use, as required by
R.C. 3509.01.
4

January Term, 2000

On October 5, after conferring with board members, the board's counsel,
and the office of respondent Secretary of State J. Kenneth Blackwell, the board's
director advised relators and Huber that their protest failed to address any defects
or ambiguities in the ballot language and denied their request for a hearing.

On October 6, relators filed this action for a writ of mandamus to compel
respondents, the board and the Secretary of State, to prepare and certify ballot
language for the question of the approval of Ordinance No. 2000-68 that fairly,
accurately, clearly, and completely describes the issue to be voted on. On
October 10, absentee ballots for Westlake were mailed to electors. We granted
Crocker's motion to intervene as a respondent, and the parties filed evidence and
briefs pursuant to the expedited schedule in S.Ct.Prac.R. X(9).

Relators claim that they are entitled to a writ of mandamus to compel the
board and the Secretary of State to approve new ballot language that accurately
describes Ordinance No. 2000-68. Relators contend that given the opinions of the
Westlake Law Director and Planning Director concerning the breadth of the
ordinance, the ballot language approved by the board does not accurately describe
the ordinance.

We need not address the merits of relators' claim because, as all
respondents assert, this cause is barred by laches. "It is well established that in
election-related matters, extreme diligence and promptness are required." State ex
rel. Commt. for the Referendum of Ordinance No. 3543-00 v. White (2000), 90
Ohio St.3d 212, 214, 736 N.E.2d 873, 875. When a party seeking extraordinary
relief in an election-related matter fails to exercise the requisite diligence and
promptness, laches may bar the action. State ex rel. Bona v. Orange (1999), 85
Ohio St.3d 18, 20-21, 706 N.E.2d 771, 773. In extraordinary writ cases involving
election matters, in order to avoid laches, relators bear the burden of establishing
that they acted with the requisite diligence. State ex rel. Manos v. Delaware Cty.
Bd. of Elections (1998), 83 Ohio St.3d 562, 564, 701 N.E.2d 371, 373.
5

SUPREME COURT OF OHIO

Relators did not satisfy their burden here. Relators knew or should have
known of comparable ballot language recommended by the Westlake City
Council on July 20, i.e., seventy-eight days before they filed this action, and
relators knew or had reason to know of the board's process to finalize nearly
identical ballot language on September 11, i.e., twenty-five days before they
sought extraordinary relief challenging the approved language. See State ex rel.
Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724
N.E.2d 775, 777 ("we have held that a delay as brief as nine days can preclude
our consideration of the merits of an expedited election case"); cf. In re Contested
Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 414, 650 N.E.2d 859,
862 ("Appellants in this case arguably were either aware of or should have been
aware of the ballot language prior to the November 2, 1993 election, yet they
failed to raise this issue prior to learning of the adverse election results").

Relators counter that they acted with the required diligence because they
filed a protest concerning the ballot language with the board on October 3, which
they claim was shortly after they learned of Crocker and the city's revised
interpretation of Ordinance No. 2000-68, i.e., that Ordinance No. 2000-68 did not
need Ordinance No. 2000-71 to be effective. According to relators, they had no
reason to believe that the ballot language was defective until they received the
affidavit of the Westlake Planning Director in case No. 00-1647 on September 29
and when Crocker and the city specified their modified view of Ordinance No.
2000-68 at the October 2 board hearing.

Relators' contentions, however, are meritless. As early as September 11,
by written response to relators' supplemental protest and by oral argument at a
board hearing at which relators were represented by counsel, Crocker argued that
Ordinance No. 2000-68 was not dependent upon Ordinance No. 2000-71.
Therefore, the evidence does not support relators' claim that this interpretation of
Ordinance No. 2000-68 was initially introduced almost three weeks later.
6

January Term, 2000
Relators were additionally advised by the board on September 11 that the board
would finalize the ballot language on September 11, but relators did not ask to
participate in the process or otherwise object to the ballot language that had been
recommended by the city council in Ordinance No. 2000-68.

Although there might have been some confusion engendered by the city
and Crocker's apparent change in legal positions concerning the interrelation of
Ordinance Nos. 2000-68 and 2000-71, any confusion did not substantially
contribute to relators' unjustified delay in filing this action. Cf. White, 90 Ohio
St.3d at 215-216, 736 N.E.2d at 876. White, a case not cited by relators, did not
involve the propriety of ballot language and was filed almost three months before
the election. By contrast, relators' delay resulted in the filing of this case after the
statutory date requiring absentee ballots to be printed and ready for use. See R.C.
3509.01.

Any minimal delay caused by the city and Crocker's modified
interpretation of the effect of Ordinance No. 2000-68 does not excuse relators'
delay. See State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86
Ohio St.3d 107, 114, 712 N.E.2d 696, 702; Manos, 83 Ohio St.3d at 563, 701
N.E.2d at 372. The "clean hands" doctrine is inapplicable here. See State ex rel.
Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 494, 700 N.E.2d
1234, 1237 (nonelection cases involving the affirmative equitable defense of
laches are inapposite because they "do not normally require the `extreme
diligence and promptness' required in election cases, nor do they implicate the
rights of electors underlying the statutory time limits of R.C. 3505.01 and
3509.01").

Further, absentee ballots have now been mailed to Westlake electors, and
voting has commenced. This is consequently not a case in which prejudice to
absentee voters would have happened "even `under the best of circumstances.' "
7

SUPREME COURT OF OHIO
Id. at 494, 700 N.E.2d at 1237, quoting State ex rel. Squire v. Taft (1994), 69 Ohio
St.3d 365, 369, 632 N.E.2d 883, 886.

Based on the foregoing, we deny the writ based on laches. This result
renders relators' claim and respondents board and Crocker's motions moot. See
State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d at
242, 736 N.E.2d at 897, citing In re Contested Election on November 7, 1995
(1996), 76 Ohio St.3d 234, 236, 667 N.E.2d 362, 363.
Writ denied.

MOYER, C.J., F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.

DOUGLAS and PFEIFER, JJ., concur in judgment only.

RESNICK, J., not participating.
__________________

Kelley, McCann & Livingstone, L.L.P., Stephen M. O'Bryan, Thomas J.
Lee and Timothy J. Duff; Brunner, Kirby & Jeffries Co., L.P.A., Jennifer L.
Brunner and Edwin L. Kirby, Jr., for relators.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Reno J.
Oradini, Assistant Prosecuting Attorney, for respondent Cuyahoga County Board
of Elections.

Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., Darrell
M. Pierre, Jr., and David S. Timms, Assistant Attorneys General, for respondent
Secretary of State.

Donald J. McTigue; Chester, Willcox & Saxbe, J. Craig Wright and John
J. Chester; Jones, Day, Reavis & Pogue, Zachary T. Paris and Randall A. Cole,
for intervening respondent, Crocker Park, L.L.C.
__________________
8