IN RE ELECTION CONTEST OF DEMOCRATIC PRIMARY ELECTION HELD MAY 4, 1999 FOR NOMINATION TO THE OFFICE OF CLERK, YOUNGSTOWN MUNICIPAL COURT.
No. 99-1508
Supreme Court of Ohio
September 29, 1999
87 Ohio St.3d 118 | 1999-Ohio-302 | 717 N.E.2d 701
Elections—Contest of election—Failure to remove name from ballot after candidate withdrew—Claim that validity of election was affected—
(No. 99-1508—Submitted September 16, 1999—Decided September 29, 1999.)
APPEAL from the Court of Common Pleas of Mahoning County, No. 99 CV 1389.
{¶ 1} The ballot for the May 4, 1999 Democratic Primary for the Clerk of the Youngstown Municipal Court contained the names of the following candidates: appellant, Rick Durkin; appellee, Sarah Brown-Clark; Charles Sammarone; Austin D. Kennedy; and Michelle Sexton. On March 26, 1999, Sammarone withdrew as a candidate for the Democratic nomination as clerk and requested removal of his name from the ballot. According to Durkin, the Mahoning County Board of Elections did not remove Sammarone’s name from the absentee and voting ballots for the May 4, 1999 primary election, and the board also failed to use any alternative means to eliminate his name from the ballots and did not inform the public that any votes cast for Sammarone would be voided.
{¶ 2} Brown-Clark won the primary election with 4,849 votes, and Durkin received 4,533 votes. Durkin claimed that Sammarone received more votes than the 316 votes that separated Brown-Clark from Durkin.
{¶ 4} In his complaint and amended complaint, Durkin alleged that an election irregularity, i.e., the board’s failure to remove Sammarone’s name from the ballot, occurred, and that this irregularity affected enough votes to affect the outcome or make unreliable and undeterminable the outcome of the election.
{¶ 5} After Durkin amended his complaint, Brown-Clark filed motions to dismiss. The board of elections also filed a motion to dismiss.
{¶ 6} A hearing on the contest was originally scheduled for June 24, but was subsequently continued to July 7. On July 7, the common pleas court commenced a trial in the case, which was adjourned to July 23 due to the death of Durkin’s counsel’s father. Although the record is unclear, Brown-Clark claims that the court subsequently continued the trial to July 26. Instead of proceeding with the trial, on July 27, the common pleas court granted Clark and the board’s motions and dismissed the election contest for failure to state a claim upon which relief can be granted. On August 13, Durkin filed a timely notice of appeal from the common pleas court’s judgment in this court pursuant to
{¶ 7} This cause is now before the court upon an appeal as of right.
Don L. Hanni and J. Gerald Ingram, for appellant.
Donald J. McTigue; Bricker & Eckler L.L.P. and Percy Squire, for appellee Sarah Brown-Clark.
Carr Goodson Warner, A Professional Corporation, and P. Terrence Gaffney, urging reversal for amicus curiae, The Voting Integrity Project.
Per Curiam.
{¶ 8} Durkin asserts that the common pleas court erred in dismissing his election contest. The common pleas court concluded that Durkin’s complaint failed to state a claim upon which relief can be granted. In order to dismiss Durkin’s complaint for failure to state a claim upon which relief can be granted, it must have appeared beyond doubt that Durkin could prove no set of facts warranting relief, after all factual allegations of his amended complaint were presumed true and all reasonable inferences were made in Durkin’s favor. State ex rel. Cuyahoga Cty. v. State Personnel Bd. of Review (1998), 82 Ohio St.3d 496, 497, 696 N.E.2d 1054, 1055.
{¶ 10} Civ.R. 12(B)(6) motions, however, merely ascertain whether the complaint alleges the elements of the claim with sufficient particularity so that reasonable notice is given to the opposing parties, i.e., Ohio generally follows notice, rather than fact, pleading. State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 113, 647 N.E.2d 804, 806. This case does not fall within one of the limited exceptions to the general rule requiring notice pleading. State ex rel. Harris v. Toledo (1995), 74 Ohio St.3d 36, 37, 656 N.E.2d 334, 335.
{¶ 11} Durkin’s complaint alleged the elements of an election contest with sufficient particularity to withstand dismissal under Civ.R. 12(B)(6). He alleged an election irregularity, i.e., that the board of elections did not remove Sammarone’s name from ballots after he withdrew from the primary election, in claimed contravention of
{¶ 12}
{¶ 14} In addition, we reject Brown-Clark’s alternative contention that the common pleas court lost jurisdiction over the election contest because of its adjournments. Unlike the cases relied upon by Brown-Clark, Durkin’s election contest action was promptly scheduled within thirty days of the filing of the complaint, and prosecution of the case had commenced within thirty days of the initial adjournment. See In re Election of Member of Rock Hill Bd. of Edn. (1996), 76 Ohio St.3d 601, 606, 669 N.E.2d 1116, 1121;
{¶ 15} In this regard,
“The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that when the last day falls on Sunday or a legal holiday, then the act may be done on the next succeeding day which is not Sunday or a legal holiday.
“When a public office in which an act, required by law, is to be performed is closed to the public for the entire day which constitutes the last day for doing such act or before its usual closing time on such day, then such act may be performed on the next succeeding day which is not a Sunday or a legal holiday as defined in this section.”
{¶ 16} The initial date was June 24, meaning that the thirtieth day thereafter fell on Saturday, July 24 — a day in which the court was closed to the public—giving the court until Monday, July 26, to conduct the hearing. Therefore, even assuming the court adjourned to July 26, the adjournment was justified.
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.