THE STATE EX REL. DUNN ET AL. v. PLAIN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION ET AL.
No. 2020-0094
Supreme Court of Ohio
February 3, 2020
2020-Ohio-339
Per Curiam
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., Slip Opinion No. 2020-Ohio-339.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-339
THE STATE EX REL. DUNN ET AL. v. PLAIN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., Slip Opinion No. 2020-Ohio-339.]
Mandamus—Elections—Writ of mandamus sought to compel placement of
(No. 2020-0094—Submitted January 29, 2020—Decided February 3, 2020.)
IN MANDAMUS.
{1} This is the third case involving a petition to transfer the territory of the village of Hills and Dales from Plain Local School District to Jackson Local School District. We dismissed the first case, which was brought by the village itself, for lack of standing. State ex rel. Hills & Dales v. Plain Local School Dist. Bd. of Edn., ___ Ohio St.3d ___, 2019-Ohio-5160, ___ N.E.3d ___, ¶ 1. In the second case, we granted a writ of mandamus ordering respondent Plain Local School District Board of Education
{2} The elections board has verified that the petition contains a sufficient number of valid signatures. Relators, ten Hills and Dales residents,1 now seek another writ of mandamus to compel the placement of the transfer proposal on the March 17, 2020 primary-election ballot. We grant a limited writ compelling the elections board to review the petition for placement on the March 17 ballot.
Background
{3} As discussed in our two earlier opinions,
{4} Although the school board considered the petition at its next regularly scheduled meeting on November 20, 2019, it did not forward the petition to the elections board as it was required to do under
{5} On January 9, 2020, the school board forwarded the transfer petition to the elections board to check the sufficiency of the signatures. On January 13—two business days later—the elections board confirmed that the petition contained a sufficient number of valid signatures. On January 16, in accordance with
{6} On January 17, relators filed this mandamus action seeking to compel the school board to (1) certify the proposal to the elections board indicating that the proposal should be placed on the March 17 primary-election ballot and (2) file with the State Board of Education the proposal and a map showing the territory that would be transferred. Relators also seek an order compelling the elections board to place the proposal on the March 17 ballot.
Laches analysis
{7} The elections board argues that the claims stated against it are barred under the doctrine of laches. “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 or wrong, and (4) prejudice to the other party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656 N.E.2d 1277 (1995).
{8} The elections board argues that relators unreasonably delayed between October 29, when the petition was filed with the school board, and December 16, when
{9} Relators’ claim against the elections board—to have the transfer proposal placed on the March 17 ballot—did not arise until the elections board verified the petition signatures and the school board certified the proposal back to the elections board. See
Mandamus analysis
{10} To be entitled to a writ of mandamus, relators must prove, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of respondents to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Given the nearness of the March 17 election, relators lack an adequate remedy in the ordinary course of the law. See State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27.
The school board has no remaining duties under R.C. 3311.242(B)
{11} Once the elections board certified the sufficiency of the petition signatures to the school board,
[c]ertify the proposal to the board of elections * * * for the purposes of having the proposal placed on the ballot at the next general or primary election which occurs not less than ninety days after the date of the certification or at a special election, the date of which shall be specified in the certification, which date shall not be less than ninety days after the date of the certification.
{12} There is no dispute that the school board certified the transfer proposal to the elections board on January 16. But relators argue that the school board failed to comply with
{13} Relators wrongly assume that the reference to the November 3 election in the January 16 certification is meaningful and binding.
{14} Given that the school board already has certified the proposal to the elections board under
{15} Relators also request a writ of mandamus compelling the school board to file the proposal and a map showing the boundaries of the territory to be transferred with the State Board of Education, as required under
Relators’ claim against the elections board is ripe
{16} Because the school board has certified the proposal under
{17} The elections board argues that its remaining obligations concerning the petition prevent relators’ mandamus claim from being ripe. It relies on our statement in Dunn that a claim is not ripe if it is “contingent on a decision that has not yet been made.” Dunn, ___ Ohio St.3d ___, 2020-Ohio-40, ___ N.E.3d ___, at ¶ 18. But this case is unlike Dunn because the elections board‘s duty to proceed concerning the petition is not contingent on another party‘s future decision. The board itself now must proceed concerning the petition—the only question being whether the proposal remains eligible for the March 17 ballot. Relators’ mandamus claim against the board—which raises that question—therefore presents a ripe controversy.
The elections board must review the petition for placement on the March 17 ballot
{18} Relators argue that the elections board should proceed to place the proposal on the March 17 ballot because the petition itself requests placement on that ballot. Respondents, however, point to
{19} Respondents argue that the transfer proposal is not eligible for placement on the March 17 ballot because
{20} For example, in State ex rel. Citizens for a Better Portsmouth v. Sydnor, 61 Ohio St.3d 49, 51-52, 572 N.E.2d 649 (1991), due to a city council‘s unauthorized delay in adopting an ordinance, a proposed charter amendment was not submitted by the deadline for placement on the ballot at the next regular election. We nevertheless granted a writ of mandamus to compel submission of the issue for consideration at the next general election because the city council “had the opportunity” to enact an ordinance in time for the issue to be placed on the general-election ballot but “declined to do so for reasons outside the scope of [its] authority.” Id. at 54. We provided similar relief based on similar facts in Morris v. Macedonia City Council, 71 Ohio St.3d 52, 57-58, 641 N.E.2d 1075 (1994). And in State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 42, we held that if a city council “has the opportunity” to take the action necessary to place an issue on an election ballot “but refuses to do so for unlawful reasons, a writ of mandamus will issue to compel its submission to the electors on that ballot instead of at a later special election.”
{21} The school board argues that these cases have no application here because they involved provisions that—unlike
{22} Considering that it took the elections board only two business days to verify the sufficiency of the signatures on the petition, it is clear that it was the school board‘s refusal to comply with
{23} But as discussed above, it would be premature for us to order the elections board to place the proposal on the March 17 ballot at this time, because the board still must proceed as it would with any other issue presented to it for placement on a ballot. Therefore, we grant a limited writ ordering the elections board to review and examine the petition under
Relators are not entitled to an award of attorney fees and costs
{24} Relators seek an award of the attorney fees and costs they have incurred in pursuing this action. Such an award may be appropriate “when the prevailing party demonstrates bad faith on the part of the unsuccessful litigant.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7.
{25} In support of their request, relators focus on the school board‘s refusal to forward the petition to the elections board
Conclusion
{26} We grant a limited writ of mandamus ordering the Stark County Board of Elections to review and examine the petition under
Writ granted.
O‘CONNOR, C.J., and FISCHER, DEWINE, and DONNELLY, JJ., concur.
FRENCH, J., concurs in part and dissents in part and would deny the writ.
STEWART, J., concurs in part and dissents in part, with an opinion.
KENNEDY, J., dissents, with an opinion.
STEWART, J., concurring in part and dissenting in part.
{27} I concur in the court‘s judgment to the extent that it orders a limited writ for respondent Stark County Board of Elections to immediately proceed with its duties for potential placement of the proposal on the March ballot. But it is premature to order placement on the March ballot at this time, before all required actions by the board of elections are taken and before any potentially required actions can be known. I believe that doing so does not take into account any unreasonable hardship on the board of elections or potential disenfranchisement of eligible voters. At a minimum, along with this court‘s order to the board of elections to place the proposal on the March ballot—because we do not know how much time will be necessary for the board to complete its required actions—this court should issue an order in the alternative for the board of elections to show cause why the proposal cannot be placed on the March ballot. I therefore concur in part and dissent in part.
KENNEDY, J., dissenting.
{28} I dissent from the court‘s decision to order a limited writ in this case. I would simply grant the writ and order respondent Stark County Board of Elections to perform all duties necessary to place the petition on the March 17, 2020 ballot.
{29}
{30} I fear that the limited nature of the writ leaves the door open to further actions designed to hinder the placement of the petition on the March 17, 2020 ballot. I acknowledge that—through no fault of its own—the Stark County Board of Elections has been thrust into a time crunch. But delaying a vote of the people beyond the March 17, 2020 election would reward the Plain Local Board of Education‘s obstruction of the electoral process. This court should ensure that these relators’ rights are held inviolate and not impeded or diminished by government. Therefore, I would grant the writ and order the board of elections to perform all duties necessary to place relators’ proposal on the March 17, 2020 ballot.
Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Scott M. Zurakowski, Owen J. Rarric, Joseph J. Pasquarella, and Amanda M. Connelly, for relators.
Ulmer & Berne, L.L.P., Amanda Martinsek, William D. Edwards, Daniela Paez, Trevor J. Hardy, Gregory C. Djordjevic, Rex A. Littrell, and Rachael Rodman, for respondent Plain Local School District Board of Education.
John D. Ferrero, Stark County Prosecuting Attorney, and Stephan P. Babik, Deborah A. Dawson, and Jessica L. Logothetides, Assistant Prosecuting Attorneys, for respondent Stark County Board of Elections.