State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections, 93
Ohio St.3d 592, 2001-Ohio-1806]

THE STATE EX REL. NEWELL v. TUSCARAWAS COUNTY BOARD OF ELECTIONS
ET AL.
[Cite as State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93
Ohio St.3d 592.]
Prohibition -- Writ sought to prevent Tuscarawas County Board of Elections
from submitting issues proposing the repeal of voter-approved levies for
the Newcomerstown Exempted Village School District to the electorate
at the November 6, 2001 general election -- Writ denied, when --
Laches defense applicable to prohibition claims in expedited election
matters.
(No. 01-1811 -- Submitted October 30, 2001 -- Decided November 5, 2001.)
IN PROHIBITION.
__________________

Per Curiam. The November 5, 1963, May 6, 1969, December 9, 1969,
May 5, 1970, November 4, 1975, and November 7, 1977 levies for the
Newcomerstown Exempted Village School District provide over twenty mills of
the 42.60 total voter-approved operating mills for the school district. On August
21, 2001, petitions were filed with respondent Tuscarawas County Board of
Elections pursuant to R.C. 5705.261 to submit issues proposing the repeal of these
levies to the electors of the school district.

On September 10, 2001, twenty days after the petitions were filed with the
board, relator, Charles E. Newell, a registered elector of Tuscarawas County, filed
a protest against the petitions. This protest consisted of six general categories of

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objections.1 Newell claimed that persons had signed petitions before their voter
registration applications had been approved by the board, that certain persons had
requested that their signatures be removed before the petitions were filed but their
names were not removed, that some petition signers' addresses differed from their
addresses filed with the board, that some signatures had been signed by someone
other than the named signer, that some signatures could not be counted because
they had been printed, and that certain petition papers had circulator statements
specifying a signature total less than the number of signatures on the petition
paper.

On September 12, 2001, the board met in an emergency session and
scheduled a hearing on Newell's protest for September 13. At the September 13
hearing, the board decided to continue the hearing to permit Newell to further
substantiate his protest because Newell had failed to specify all of the signatures
being challenged by his protest. Following the September 13 hearing, Newell's
attorney advised the board that he would be available to complete the hearing
during the week beginning September 17, but according to Newell's counsel, the
board advised him that that week was unacceptable because board members
would be attending the Tuscarawas County Fair. On September 18, the board
notified Newell that the hearing would be held on September 27.

On September 27, the board conducted the protest hearing. At the
hearing, Newell submitted exhibits specifying the signatures he challenged and
the reasons for each of his challenges. Newell also submitted three affidavits of
persons who had signed the petitions. John L. Bryant and Bonnie Myers stated in
their affidavits that a petition circulator had misrepresented the purpose of signing
the petitions and that when they subsequently requested that the circulator strike

1.
The September 10, 2001 protest is not part of the record in this case. The protests that are
part of Newell's evidence here were his supplemental submissions at the September 27, 2001
board hearing.
2

January Term, 2001
their names from the petitions, the circulator represented that he would strike the
signatures, but he instead filed the petitions without striking Bryant's and Myers's
names. Ida Roberts stated in her affidavit that a petition circulator misrepresented
the purpose of the petitions and did not witness her sign her own name as well as
her husband's name to the petitions. The board had stricken Bryant's and the
Robertses' signatures from the petitions.

The board noted that it would have been preferable for Newell to have
requested that the board subpoena the affiants as well as other petition signers so
that they could have been subject to cross-examination at the protest hearing.
Newell's attorney apologized for not having these witnesses subpoenaed and
claimed, without evidentiary support, that the three affiants were all unavailable
to testify at the protest hearing. Newell's attorney stated that he had examined the
petitions the night before the September 27 hearing to determine where it was
clear that one person had signed for two persons.

At the September 27 hearing, Newell requested that the board conduct a
comparative analysis of petition signatures and voter registration records and that
it subpoena some of the petition signers "if there is any doubt in the Board's mind
that the signatures are not of whom they purport to be." When one board member
asked if delaying a protest decision upon Newell's request for further board
investigation would affect an election deadline, Newell's attorney asked whether
there were deadlines for putting the issues on the ballot and for printing the
ballots.

The board, following an executive session to consult with its attorney,
allowed Newell to copy voter registration records, which he had failed to submit
previously, to attempt to prove his claim that certain petition signatures were
written by the same person. The board's deputy director, however, testified that
her comparison of the challenged signatures could not establish that they were not
the valid signatures they purported to be.
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The board struck some signatures because of Newell's challenges, but
ultimately denied his protest, including his claim that the petition papers
containing signatures that had not been witnessed by the circulator should be
stricken. The board determined that the petitions contained the following totals of
valid signatures: repeal of the November 5, 1963 levy, 461 signatures; repeal of
the May 6, 1969 levy, 444 signatures; repeal of the December 9, 1969 levy, 469
signatures; repeal of the May 5, 1970 levy, 465 signatures; repeal of the
November 4, 1975 levy, 466 signatures; and repeal of the November 7, 1977 levy,
456 signatures. All of the petitions exceeded the four hundred and forty
signatures required to place the issues on the November 6, 2001 election ballot.

On October 11, 2001, fourteen days after the board's decision denying his
protest, Newell filed this expedited election action for a writ of prohibition to
prevent respondents, the board of elections, and the Secretary of State of Ohio,
from placing any of the proposed issues on the November 6, 2001 election ballot.
After the board filed a motion to dismiss and the Secretary of State filed an
answer, Newell and the Secretary of State filed briefs, and Newell filed evidence
pursuant to the expedited election schedule in S.Ct.Prac.R. X(9). The Ohio
Education Association filed an amicus curiae brief in support of Newell. This
cause is now before the court for a consideration of the merits.

Newell seeks a writ of prohibition to prevent the submission of the issues
repealing the school district levies to the electorate at the November 6, 2001
general election. In order to be entitled to the requested writ of prohibition,
Newell must establish that (1) the board is about to exercise judicial or quasi-
judicial power, (2) the exercise of that power is unauthorized by law, and (3)
denial of the writ will cause injury for which no other adequate remedy in the
ordinary course of the law exists. Stutzman v. Madison Cty. Bd. of Elections
(2001), 93 Ohio St.3d 511, 757 N.E.2d 297.
4

January Term, 2001

Despite the board's contentions to the contrary,2 it exercised quasi-judicial
authority by denying Newell's protest following an R.C. 3501.39 hearing that
included the sworn testimony of the board's deputy director. Christy v. Summit
Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 37, 671 N.E.2d 1, 3; State ex rel.
Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736
N.E.2d 893, 897. And Newell has no other adequate remedy in the ordinary
course of law to challenge the submission of the issues to the electorate. Christy,
77 Ohio St.3d at 37, 671 N.E.2d at 3.

Therefore, at issue in this case is whether the board's exercise of quasi-
judicial power in denying Newell's protest and placing the issues on the
November 6 ballot is unauthorized. The board's decision is legally unauthorized
if Newell establishes that the board engaged in fraud or corruption, abused its
discretion, or acted in clear disregard of applicable legal provisions. State ex rel.
Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 757 N.E.2d
319. Newell contends that the board abused its discretion and clearly disregarded
applicable law, including R.C. 3501.38(E), by denying his protest and placing the
issues on the November 6 ballot.

We need not address Newell's claims. Both the board of elections and the
Secretary of State assert that this case is barred by laches. As we recently
observed, "[w]e have consistently required relators in election cases to act with
the utmost diligence." State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d
522, 757 N.E.2d 307. A relator seeking extraordinary relief in an election-related
matter bears the burden of establishing that the relator acted with the required
diligence, and if the relator fails to do so, laches may bar the action. State ex rel.

2.
The board filed a motion to dismiss, which is generally inappropriate in expedited
election cases. See State ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio
St.3d 107, 111, 712 N.E.2d 696, 700.
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Hills Communities, Inc. v. Clermont Cty. Bd. of Elections (2001), 91 Ohio St.3d
465, 467, 746 N.E.2d 1115, 1117-1118.

Newell did not satisfy this burden here. He waited twenty days after the
petitions were filed on August 21 to file his September 10 protest, and he then
waited another fourteen days following the board's September 27 decision to file
this action for extraordinary relief. See State ex rel. Demaline v. Cuyahoga Cty.
Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, 245,
quoting 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' ").

Newell claims that any delay was justified because the board continued
the September 13 protest hearing to September 27 and that his attempts to have
the protest hearing rescheduled during the week of September 17 failed because
the board members did not want to miss the county fair. But any minimal delay
caused by the board's alleged actions does not excuse Newell's delay in filing his
protest and in instituting this action for expedited extraordinary relief. Demaline,
90 Ohio St.3d at 527, 740 N.E.2d at 246; State ex rel. Manos v. Delaware Cty. Bd.
of Elections (1998), 83 Ohio St.3d 562, 563, 701 N.E.2d 371, 372.

In fact, the transcript of the board's September 27 hearing indicates that
the board continued the hearing from September 13 because Newell's September
10 protest, which is not contained in the evidence before the court, failed to
sufficiently challenge specific signatures and that the board was affording Newell
an additional opportunity to better specify and substantiate his protest. Even at
the September 27 hearing, Newell did not have any witness subpoenaed to testify,
and he requested at that late date that the board conduct further investigations,
including subpoenaing witnesses and comparing signatures with records that
Newell failed to obtain before the protest hearing. Newell's attorney also
6

January Term, 2001
expressed ignorance of the statutory deadlines involved in expedited election
matters.

By Newell's apparent failure to comply with R.C. 3501.39(A) by not
stating all of his objections in his September 10 protest with sufficient specificity,
he necessitated the board's continuance of the September 13 hearing. See Ryant
Commt., 86 Ohio St.3d at 113, 712 N.E.2d at 701 ("By not promptly submitting a
statutorily sufficient protest and by engaging in acts of gamesmanship that did not
assist the board in its objective of expeditiously determining their challenges,
relators commenced a sequence of dilatory actions that necessitated our order to
impound the ballots for the special election"). Newell's counsel also admits that
he advised the board that he could not attend a protest hearing on either
September 24 or 25. Therefore, at least a portion of the delay resulting from the
continuance of the hearing was attributable to Newell's actions.

Newell also contends that in expedited election prohibition cases, the
laches doctrine should not be invoked because "the decision to remove an issue
from the election can be made up until the time the ballots are counted." But we
have never adopted a rule exempting prohibition cases from the laches doctrine
applicable to expedited election matters. For example, in State ex rel. Polo v.
Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 656 N.E.2d 1277, we
unanimously held that a seventeen-day delay until October 6 to file an expedited
election case for a writ of prohibition to remove a candidate's name from the
November 7, 1995 election ballot prevented our consideration of the prohibition
claim based on laches; see, also, Manos (laches bars prohibition action to prevent
rezoning and development issues from being placed on election ballot).
Similarly, Newell delayed twenty days to submit a protest to the petitions, caused
at least a portion of the delay in the continuance of the protest hearing, and then
delayed another fourteen days until October 11 to file this prohibition action.
7

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In addition, Newell's counsel's lengthy argument at the September 27
protest hearing established that he "had a sufficient grasp of the pertinent legal
issues to obviate extensive research time before filing" this expedited election
action. See Carberry, 93 Ohio St.3d at 524, 757 N.E.2d at 309.

Finally, the deadline to have absentee ballots printed and ready for use for
general absentee voters and to have them mailed to Armed Services absentee
voters was October 2. R.C. 3509.01 and 3511.04. Newell's unjustified delays in
preparing and supporting his protest, in necessitating at least a portion of the delay
between the September 13 and 27 protest hearings, and in filing this action
resulted in the passing of this date over a week before he filed this case. As noted
previously, at the September 27 hearing, his attorney exhibited a lack of
appreciation for the importance of these and other statutory deadlines in election
cases. Like the relators in Carberry, if Newell had been more diligent, he could
have had his claim resolved before the passing of these deadlines or, at a
minimum, the prejudice to the board in its statutory obligations to absentee voters
would have been limited to fewer affected voters. See, e.g., Polo; cf. State ex rel.
Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883, 886.

Permitting Newell's belated challenge to proceed here would, as the
Secretary of State persuasively argues, confuse voters and upset an election
process that has already commenced. See State ex rel. Oster v. Lorain Cty. Bd. of
Elections (2001), 93 Ohio St.3d 480, 486, 756 N.E.2d 649, 655-656 (Secretary of
State is the state's chief election officer and Secretary's interpretation of election
statutes is entitled to greater weight); see, also, State ex rel. Lewis v. Hamilton
Cty. Bd. of Elections (1995), 74 Ohio St.3d 1201, 1205, 655 N.E.2d 177, 179
(Douglas, J., concurring) ("Once the election process has begun, absent a
complete lack of authority to hold the election in the first instance, the process
must not be disturbed").
8

January Term, 2001

Based on the foregoing, laches bars Newell's prohibition action. Newell
did not act with the diligence required in expedited election cases. By so holding,
we need not address the merits of Newell's claims. See Carberry, 93 Ohio St.3d
at 523, 757 N.E.2d at 309. Accordingly, we deny the writ.
Writ denied.

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

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

DOUGLAS, J., dissents.
__________________

DOUGLAS, J., dissenting. I respectfully dissent. For the reasons that
follow, I would issue a writ of prohibition with regard to at least three of the six
petitions at issue.

In denying the writ, the majority accepts respondents' argument that this
case is barred by laches. I disagree. I believe the relator has established that he
acted with the required diligence in pursuing this case. He filed a written protest
twenty days after the petitions were filed. Although the actual protest is not part
of the record, it is clear from the transcript of the hearing before the board that the
written protest detailed at least six separate categories of irregularities with regard
to the circulation of the petitions. In preparing his protest, relator examined and
compared over two thousand seven hundred signatures contained in the six
petitions and interviewed and obtained affidavits from persons who had signed
the petition regarding irregularities in the circulation of the petitions. I believe
that relator acted with due diligence in this regard. Moreover, neither respondent
argues this as grounds for laches, but, rather, both argue that the claim is barred
by laches because relator did not file his action in this court until fourteen days
after the board denied his protest.

I would find that respondents are estopped from raising laches as a defense
because of the board's prior action of continuing the September 13 protest hearing
9

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for fourteen days. The majority finds that the continuance was necessitated by
relator's failure to comply with R.C. 3501.39(A) by not stating all of his
objections in his September 10 protest with sufficient specificity. I disagree with
that finding.

The transcript from the September 27 hearing indicates that at the
September 13 hearing, Thomas Hisrich, chairman of the board, instructed relator
to narrow his protest to just those signatures that the board certified as valid. The
September 13 hearing was then continued to allow relator time to narrow his
protest. Contrary to the majority's assertion, this is not a requirement of R.C.
3501.39(A). It is clear to me that the hearing was continued as a matter of
convenience to the board members who did not want to "waste a lot of time"
listening to relator's protests regarding petition signatures that were not certified.

Relator advised Hisrich that he would be ready to continue the
proceedings the following Monday, September 17. Hisrich informed relator that
the board would be unable to hold the hearing the week of September 17 because
members of the board wished to attend the Tuscarawas County Fair that was
scheduled for that week. Therefore, Hisrich set September 27, fourteen days later,
as the date for further hearing. Thus, I conclude that respondents are estopped
from raising laches based on relator's fourteen-day delay in filing his complaint in
this court when the board delayed the protest hearing fourteen days so its
members could attend the county fair. For the foregoing reasons, I would reject
respondents' laches defense and reach the merits of this case.

Relator raised numerous objections to the petitions in his protest before
the board and in his complaint before this court. One stands out and is supported
by the evidence. That objection relates to the circulator affidavit that, pursuant to
R.C. 3501.38, must be on each part-petition. R.C. 3501.38 provides that all
petitions filed with a board of elections on any issue "shall" be governed by the
following:
10

January Term, 2001

"(E) On each petition paper the circulator shall indicate the number of
signatures contained thereon, and shall sign a statement made under penalty of
election falsification that he witnessed the affixing of every signature, that all
signers were to the best of his knowledge and belief qualified to sign, and that
every signature is to the best of his knowledge and belief the signature of the
person whose signature it purports to be." (Emphasis added.)

Relator's protest included the assertion that a petition circulator, Chester
McVey, who had submitted part-petitions on each issue, had executed faulty
affidavits on some of the part-petitions he circulated. In support of his contention,
relator offered an affidavit executed by Ida Roberts. That affidavit contains the
following statements:

"2. On July 5, 2001, Chester McVey came to Affiant's home with several
petitions which he said were to lower property taxes and fix roads.

"* * *

"4. Chester McVey waited on Affiant's porch while Affiant took the
petitions inside her house.

"5. While Affiant was inside her home, Affiant signed her name and that
of her husband, Ollie Roberts, to the petitions.

"6. Affiant returned to her porch with the petitions and handed them back
to Chester McVey bearing the names of both Affiant and Ollie Roberts.

"* * *

"8. Chester McVey did not personally witness Affiant affix her signature
to the petitions or sign her husband's name on the petitions."

Because no evidence was submitted at the hearing to rebut this affidavit,
the board should have found that McVey had executed faulty affidavits on the
part-petitions containing Ida Roberts's signature. Furthermore, because election
laws are mandatory and require strict compliance, State ex rel. Citizens for
Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167,
11

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169, 602 N.E.2d 615, 617, the entire part-petitions containing the faulty affidavits
should have been invalidated for failure to comply with R.C. 3501.38(E).

The record shows that the board certified twenty-four to twenty-six
signatures on each of the six part-petitions containing Ida Roberts's signature.
(Ida Roberts signed a part-petition for each of the six issues.) Because I would
find that these signatures should not have been certified, I would subtract the
appropriate number from the number of signatures certified by the board on each
petition and then determine whether each of the six petitions had the required
number of signatures to place them on the ballot.

Accordingly, the board certified four hundred sixty-one signatures on the
petition to repeal the November 5, 1963 levy. I would subtract twenty-five from
that total, leaving four hundred thirty-six valid signatures. Because each petition
was required to have at least four hundred forty signatures to be placed on the
ballot, I would find the number of signatures on this petition insufficient and
would issue a writ of prohibition as to the petition to repeal the November 5, 1963
levy. Similarly, the board certified four hundred forty-four signatures on the
petition to repeal the May 6, 1969 levy and four hundred fifty-six signatures on
the petition to repeal the November 7, 1977 levy. Thus, reducing these totals by
twenty-five and twenty-six respectively leaves fewer than four hundred forty
signatures on each. Therefore, I would also issue a writ with regard to these
petitions.

On the other hand, the board certified four hundred sixty-nine signatures
on the petition to repeal the December 9, 1969 levy. Subtracting twenty-five
signatures from that total leaves four hundred forty-four valid signatures, which
are more than the four hundred forty signatures required. Thus, I would not issue
a writ of prohibition as to the petition to repeal the December 9, 1969 levy.
Likewise, the board certified four hundred sixty-five signatures on the petition to
repeal the May 5, 1970 levy and four hundred sixty-six signatures on the petition
12

January Term, 2001
to repeal the November 4, 1975 levy. Thus, when these totals are reduced by
twenty-five and twenty-four respectively they still have the required number of
signatures to place these issues on the ballot. Notwithstanding these
computations, it appears from the face of the petitions that they would be subject
to further challenge upon other statutory and evidentiary grounds. However,
neither the board nor the relator pursued these issues at the hearing by developing
or producing competent, sworn evidence to the apparent irregularities. Therefore,
I would not issue a writ with regard to these petitions.

Accordingly, I would issue a writ with regard to the petition to repeal the
November 5, 1963 levy, the petition to repeal the May 6, 1969 levy, and the
petition to repeal the November 7, 1977 levy. I recognize that ballots have been
prepared and the election is already underway through absentee ballots. Thus, in
issuing a writ I would indicate that the votes cast on the three issues specified
above should not be tabulated.
__________________

Squire, Sanders & Dempsey, L.L.P., David J. Young and Michael R. Reed,
for relator.

Michael A. Cochran, Tuscarawas County Assistant Prosecuting Attorney,
for respondent Tuscarawas County Board of Elections.

Betty D. Montgomery, Attorney General, Darrell M. Pierre, Jr., and
Elizabeth Luper Schuster, Assistant Attorneys General, for respondent Secretary
of State of Ohio.

Susan J. Kyte, urging granting of the writ for amicus curiae, Ohio
Education Association.
__________________
13