THE STATE EX REL. ASCANI ET AL. v. STARK COUNTY BOARD OF ELECTIONS ET AL.
No. 98-1914
Supreme Court of Ohio
October 15, 1998
83 Ohio St.3d 490 | 1998-Ohio-586
Submitted October 13, 1998
[Cite as State ex rel. Ascani v. Stark Cty. Bd. of Elections, 1998-Ohio-586.]
Elections—Initiative petition to submit issue whether
IN PROHIBITION and MANDAMUS.
{¶ 1} Northfield Park Associates (“Northfield Park“), an Ohio general partnership, owns and operates a standardbred horseracing track in Northfield, Ohio. Northfield Park established Canton OTB, Ltd. (“Canton OTB“), an Ohio limited liability company, to operate an
{¶ 2} Shortly thereafter, according to published articles of The Canton Repository newspaper, respondent Stark County Elections Board Member Charles
{¶ 3} On June 11, after conducting a public hearing, the Ohio State Racing Commission approved Northfield Park‘s application to open and operate, through Canton OTB, a satellite facility in Canton.
{¶ 4} On June 18, the petition entitled “Local Option Electiоn Petition,” signed by qualified Stark County electors, was filed with respondent Stark County Board of Elections. The petition did not contain the election falsification statement specified in
“Shall satellite facilities that receive simulcasts of live horse races and that conduct wagering on those simulcasts be prohibited throughout this county for a period of five (5) years?”
{¶ 5} On August 4, the board certified the foregoing issue to the November 3 Stark County general election ballot.
{¶ 6} On August 27, which was ten weeks after the petition was filed with the board and over three weeks аfter the board certified the issue set forth in the petition, relator Thomas A. Ascani, Jr., a qualified resident elector of Stark County, filed a written protest with the board challenging the validity of the petition. Ascani claimed that the petition was invalid because it did not contain the
{¶ 7} On Septеmber 1 and 3, the board conducted hearings on the protest. At the hearings, Ascani‘s attorney conceded that she had been at the August 4 board meeting at which it decided to certify the petition issue to the November 3 ballot, but claimed that she was not representing Ascani at that time. Despite board member Brown‘s admitted role in drafting and reviewing the petition, the board rejected Ascani‘s request that Brown recuse himself from voting on the protest and Brown refusеd to voluntarily recuse himself. The board then voted two-to-two on a motion to uphold Ascani‘s protest, with Brown voting to deny the protest.
{¶ 8} As a result of the board‘s tie vote, the board submitted the matter to respondent Secretary of State Bob Taft. The Secretary of State denied the protest on September 14.
{¶ 9} On September 17, Ascani filed this expedited election action for a writ of prohibition or, in the alternative, a writ of mandamus to prevent respondents, the board, its members, and the Secretary of State, from conducting the November 3 election on the off-track-betting issue. We granted Canton‘s motion to intervene as a relator. Pursuant to S.Ct.Prac.R. X(9), the parties have submitted evidence and briefs, and Attorney General Betty D. Montgomery has filed a motion for leave to intervene as a respondent and briefs.
Jones, Day, Reavis & Pogue, Harry J. Lehman, J. Kevin Cogan and Kirsten K. Davis; Brunner & Brunner Co., L.P.A., Jennifer L. Brunner and Edwin L. Kirby, Jr., for relator Thomas A. Ascani, Jr.
Thomas M. Bernabei, Canton Law Director, Kathleen O. Tatarsky and Robert G. Rubin, Assistant Law Directors, for intervening relator, city of Canton.
Betty D. Montgomery, Attorney General, Arthur Marziale, Jr. and Jeffrey B. Hartranft, Assistant Attorneys General, for respondent Secretary of State and intervening respondent Attorney General.
Per Curiam.
{¶ 10} Relators assert that they are entitled to writs of prohibition and mandаmus to prevent the November 3 election on the off-track-betting issue. The Secretary of State counters that relators’ claims are barred by laches. For the following reasons, we concur with the Secretary of State and deny the writs based on laches.
{¶ 11} “The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury оr wrong, and (4) prejudice to the other party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 145, 656 N.E.2d 1277, 1279. “Extreme diligence and promptness are required in election-related matters.” In re Contested Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 413, 650 N.E.2d 859, 862.
{¶ 12} Relators did not act with the requisite diligence and promptness here. Although the local optiоn petition was circulated before June and filed with the board on June 18, Ascani did not file his written statutory protest until ten weeks after the petition was filed and twenty-three days after the board certified the question in the petition to thе November 3 election ballot. Canton did not submit its letter in support of Ascani‘s protest until five days after the protest. The evidence establishes that relators had at least constructive knowledge of the petition, espеcially given the local publicity concerning the matter and Ascani‘s counsel‘s
{¶ 13} Relators lack any justifiable excuse for not submitting a protest sooner. Even if relators were not resрonsible for any delay caused by the board‘s tie vote on Ascani‘s protest and the subsequent submission of the matter to the Secretary of State, that delay does not excuse or justify their own nearly three-month delay following the filing оf the petition to submit a written protest. State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 187, 685 N.E.2d 507, 511.
{¶ 14} Relators’ delay in filing a written protest with the board was prejudicial because by the time they filed this action for extraordinary relief, the date for certifying the ballot form had passed, and by the time the expedited briefing schedule was completed, the date for providing absentee ballots had passed. Cooker Restaurant Corp., 80 Ohio St.3d at 309, 686 N.E.2d at 244; see, also, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48-49, 600 N.E.2d 656, 659;
{¶ 15} In this regard, Ascani erroneously relies on nonelection cases to claim that no prejudice resulted from relators’ failure to act promptly here. Cf., e.g., State ex rel. Roadway Express v. Indus. Comm. (1998), 82 Ohio St.3d 510, 513, 696 N.E.2d 1064, 1067. Nonelection cases 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
{¶ 16} Nor does Ascani‘s citation of State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291, 649 N.E.2d 1205, 1207, and State ex rel. Rife v. Franklin Cty. Bd. of Elections (1994), 70 Ohio St.3d 632, 640, N.E.2d 522, require that the court resolve the merits of relators’ clаims here. Thurn does not discuss laches, and this case involves more than the mere “two-week delay more than two months before an election” in Rife, 70 Ohio St.3d at 635, 640 N.E.2d at 525.
{¶ 17} Based on the foregoing, we deny the writs because relators’ claims are barrеd by laches. This is not a case where the statutory time limits for certifying the ballot form and providing absentee ballots would have been exceeded even “under the best of circumstances.” Cf. State ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883, 886. By resolving this case based on laches, we need not address the merits of relators’ various claims or the Attorney General‘s motion for leave to intervene. In re Contested Election on November 7, 1995 (1996), 76 Ohio St.3d 234, 235-236, 667 N.E.2d 362, 363.
Writs denied.
MOYER, C.J., RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.
PFEIFER, J., concurs separately.
DOUGLAS, J., concurs in judgment only.
F.E. SWEENEY, J., dissents.
PFEIFER, J., concurring.
{¶ 18} This court should adopt a less rigid standard regarding the application of laches in election cases where the relator is seeking to have an issue removed from the ballot. Timeliness is a practical concern where a relator is
{¶ 19} I also disagree with Justice Douglas‘s opinion that thе Secretary of State holds the final say in these matters. Where constitutionality is at issue and is properly raised, it is our job, not the Secretary of State‘s, to decide the issue. This is one of those cases.
{¶ 20} Here, the petitioners argue that
DOUGLAS, J., concurring in judgment only.
{¶ 21} I concur in the judgment of the majority denying the requested writs. I do so, however, on the basis that the decision of the Secretary of State, in breaking a tie vote of a local elections board, is final pursuant to
{¶ 22} As to Justice Pfeifer‘s reference to my concurrence, in this case Justice Pfeifer is, on the law, in clear error. While it is true that constitutionality of statutes is a question for the courts and not for boards of elections, commissioners, or even the Secretary of State, in the case now befоre us the relators could have (and should have) filed an action for declaratory judgment after the decision of the Canton City Council of March 16, 1998. Clearly relators had an adequate remedy at law, and this is not one of thosе cases where a party would be foreclosed from a remedy because of a lack of time to get a proper determination. It is, after all, now seven months later.
{¶ 23} Accordingly, when the matter was submitted to the Secretary of State to break a tie vote of the board of elections, the Secretary of State was called upon to make a final decision on an issue properly before him, and, therefore,
FRANCIS E. SWEENEY, SR., J., dissenting.
{¶ 24} I respectfully dissent and would grant the relief requested.