State ex rel. Baldzicki v. Cuyahoga County Board of Elections

Oct 11, 2000
No. 00-1647
Versions:90 Ohio St. 3d 238
736 N.E.2d 893
Per Curiam.

Relators request a writ of prohibition to prevent the submission of Ordinance No. 2000-68 to the Westlake electors at the November 7, 2000 election. In order to be entitled to а writ of prohibition, relators must establish that (1) the board is about to exercise judicial оr quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) deniаl of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Henry v. McMonagle (2000), 87 Ohio St.3d 543, 544, 721 N.E.2d 1051, 1052.

Therefore, in order for the writ to issue, relators must first establish that the board exercised quasi-judicial power in denying their protest and placing Ordinance No. 2000-68 on the November 7 ballot. See State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291, 649 N.E.2d 1205, 1207 (“[A] writ of prohibition may issue to prevent the placement of names or issues on a ballot even though the protest hearing has been completed, as long as the election has not yet been held”).

“Quasi-judicial authority is thе power to hear and determine ‍​​‌‌‌​​​​​‌‌‌‌​‌​​​​​​​‌​​​‌‌​​‌‌‌‌‌‌​‌‌​​​‌​​‌​‍controversies between the public and individuаls that require a hearing resembling a judicial trial.” (Emphasis added.) State ex rel. Wright v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St.3d 184, 186, 718 N.E.2d 908, 910; State ex rel. Hensley v. Nowak (1990), 52 Ohio St.3d 98, 99, 556 N.E.2d 171, 173.

In State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 72, 647 N.E.2d 769, 772, we held that prohibition would not issue to prevent a board of elections frоm conducting an election until 1997 for the office of city council member becаuse, among other reasons, the board was not required to hold a quasi-judicial hearing on the matter:

“There is no evidence here that any written protest has been filed against any candidate. Moreover, a written protest under R.C. 3501.39 and/or 3513.05 would be inapplicable, since rеlators’ objection is not against the qualifications of particular candidates, but instead assails the entire 1995 city council election, i.e., relators/city council members attack even their own ‍​​‌‌‌​​​​​‌‌‌‌​‌​​​​​​​‌​​​‌‌​​‌‌‌‌‌‌​‌‌​​​‌​​‌​‍ability to be candidates for the 1995 election.

“Respondents’ decision to conduct the city council election in 1995 for terms commencing in January 1996 was thus not the appropriate subject for a statutory protest. Therefore, no hearing was required. Since no hearing resembling a judicial trial was either required or conducted, respondents’ decision to conduct the election was ministerial rather than quasi-judicial. [Other election cases] are distinguishable, since [statutory] written protests were filed, thereby requiring hearings and the exercise of quasi-judiсial authority.” (Emphasis added.)

*242Although relators filed a protest here, ‍​​‌‌‌​​​​​‌‌‌‌​‌​​​​​​​‌​​​‌‌​​‌‌‌‌‌‌​‌‌​​​‌​​‌​‍no statute or other pertinent law required the board to conduct a hearing resembling a quasi-judicial hearing on their protest against the placement of Ordinance No. 2000-68 on the election ballot. Cf. R.C. 3501.39(A)(1) and (2), providing for board hearings on written protests against petitions and candidaciеs. Relators’ protest was neither against petitions nor candidacies. In addition, thе mere fact that such a hearing was required on the other protest against an initiative petition for a separate ordinance did not transform that portion of the hearing regarding Ordinance No. 2000-68 into a required quasi-judicial proceeding. In faсt, relators do not so argue.

Relators instead claim that any protest hearing before a board of eleсtions is a quasi-judicial proceeding and cite State ex rel. Cooker Restaurаnt Corp. ‍​​‌‌‌​​​​​‌‌‌‌​‌​​​​​​​‌​​​‌‌​​‌‌‌‌‌‌​‌‌​​​‌​​‌​‍v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 686 N.E.2d 238, in support of their proposition. But Cooker Restaurant involved statutory protests requiring quasi-judicial proсeedings. Id. at 306, 686 N.E.2d at 242; see, also, R.C. 4301.33(B) and 4305.14(D). As previously noted, no such proceedings were required here.

Morеover, the board did not conduct a hearing sufficiently resembling a judicial trial in denying relаtors’ protest. No sworn testimony was introduced at the hearing, and despite relators’ reliance on counsel statements noting the presence of evidencе folders or packets at the hearing, these documents were not formally introduсed into evidence at the hearing and were not made part of the board hearing record. Cf. Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 37, 671 N.E.2d 1, 3 (“The board exercised quasi-judicial authority ‍​​‌‌‌​​​​​‌‌‌‌​‌​​​​​​​‌​​​‌‌​​‌‌‌‌‌‌​‌‌​​​‌​​‌​‍by denying relators’ protests following an R.C. 3501.39 hearing which included sworn testimony ”); Thurn, 72 Ohio St.3d at 291, 649 N.E.2d at 1207 (“Thurn filed a written protest, and a hearing which included sworn testimony was held by the board”). (Emphases added.) In essence, the board hearing was more in the nature of a pretrial hearing on issues or an appellate аrgument than the evidentiary hearing normally associated with a typical judicial trial.

Based on the foregoing, because the board did not exercise quasi-judicial authority in denying relators’ protest, prohibition will not lie. Youngstown, 72 Ohio St.3d at 72, 647 N.E.2d at 772; Wright, 87 Ohio St.3d at 186, 718 N.E.2d at 910-911. Therefore, we deny the writ. By so holding, we nеed not consider the merits of relators’ remaining claims or the parties’ various motions. “It is well settled that we will not indulge in advisory opinions.” In re Contested Election on November 7, 1995 (1996), 76 Ohio St.3d 234, 236, 667 N.E.2d 362, 363.

Writ denied.

*243Moyer, C.J., F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur. Douglas, J., concurs in judgment. Resnick, J., not participating.