State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 74 Ohio St.3d 143.]

THE STATE EX REL. POLO v. CUYAHOGA COUNTY BOARD OF ELECTIONS.

[Cite as State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 1995-Ohio-269.]

Elections—Prohibition compelling Cuyahoga County Board of Elections to

remove candidate’s name, whose home is located in the city of Broadview

Heights, from the November 7, 1995 North Royalton mayoral election

ballot—Writ granted, when.

(No. 95-2061—Submitted October 24, 1995—Decided November 9, 1995.)

In PROHIBITION.

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{¶ 1} Lisa Uffman-Kirsch is a candidate for mayor of the city of North

Royalton who is listed on the November 7, 1995 election ballot. Although Uffman-

Kirsch’s home is located in the city of Broadview Heights, her driveway and

mailbox are located in North Royalton. Her mailing address is 3060 Wiltshire

Road, North Royalton.

{¶ 2} On September 18, 1995, relator, David M. Polo, a resident elector of

North Royalton, filed a protest with respondent, Cuyahoga County Board of

Elections, challenging the validity of Uffman-Kirsch’s mayoral candidacy due to

her residential status. On September 19, the board held a hearing on Polo’s protest.

{¶ 3} At the hearing, Uffman-Kirsch admitted that her home is located in

Broadview Heights, although the only street access to her home is through her

driveway entrance in North Royalton. Her police, fire, and garbage services are

provided by North Royalton. She has always been registered to vote in North

Royalton and has never voted in Broadview Heights. According to the board

registration manager, the only way the board classifies voting residence is by street

address. In accordance with the board’s policy, Uffman-Kirsch’s voting residence

was listed as North Royalton.

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{¶ 4} Uffman-Kirsch further admitted that her home had a Broadview

Heights building permit and that she had paid Broadview Heights taxes on the

property from approximately 1989 or 1990 until 1993. Richard Allar, an engineer

for both North Royalton and Broadview Heights, confirmed that Uffman-Kirsch’s

home is located in Broadview Heights. At the conclusion of the hearing, the board

denied Polo’s protest.

{¶ 5} On October 6, 1995, Polo instituted this expedited election case

seeking a writ of prohibition to remove Uffman-Kirsch’s name from the November

7, 1995 election ballot for North Royalton. On October 18, 1995, the board filed

an answer and a motion for summary judgment. Uffman-Kirsch has filed a motion

to intervene.

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Grendell & Marrer Co., L.P.A., Timothy J. Grendell and David H. Gunning

II, for relator.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Patrick J.

Murphy and Michael P. Butler, Assistant Prosecuting Attorneys, for respondent.

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Per Curiam.

Motion to Intervene

{¶ 6} As a preliminary matter, Uffman-Kirsch cites Civ.R. 24 in support of

her motion to intervene. See S.Ct.Prac.R. X(2) (“All original actions shall proceed

under the Ohio Rules of Civil Rules of Procedure, unless clearly inapplicable.”).

Civ.R. 24 is generally liberally construed in favor of intervention. See, e.g., State

ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 247, 594 N.E.2d 616, 619.

Nevertheless, Civ.R. 24(C) sets forth the following requirements for a motion to

intervene:

“A person desiring to intervene shall serve a motion to intervene upon the

parties as provided in Rule 5. The motion shall state the grounds therefore and

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shall be accompanied by a pleading setting forth the claim or defense for which

intervention is sought. The same procedure shall be followed when a statute of this

state gives a right to intervene.” (Emphasis added.)

{¶ 7} Since Uffman-Kirsch’s motion is not accompanied by any pleading,

her motion is denied. See State ex rel. Youngstown v. Mahoning Cty. Bd. of

Elections (1995), 72 Ohio St.3d 69, 70, 647 N.E.2d 769, 771.

Prohibition and Laches

{¶ 8} After the time for filing an answer or a motion to dismiss, we must

determine whether a peremptory writ, alternative writ, or dismissal is appropriate.

S.Ct.Prac.R. X(5). If it appears beyond doubt that Polo can prove no set of facts

entitling him to extraordinary relief in prohibition, dismissal is warranted. State ex

rel. Edwards v. Toledo City School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 106,

108, 647 N.E.2d 799, 802; Civ.R. 12(B)(6).

{¶ 9} In order to obtain a writ of prohibition, Polo 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) denying the writ will result in injury for

which no other adequate remedy exists in the ordinary course of the law. Goldstein

v. Christensen (1994), 70 Ohio St.3d 232, 234-235, 638 N.E.2d 541, 543.

{¶ 10} The board asserts that laches bars Polo’s action for an extraordinary

writ. 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. Meyers v.

Columbus (1995), 71 Ohio St.3d 603, 605, 646 N.E.2d 173, 174. Prejudice is not

inferred from a mere lapse of time. State ex rel. Chavis v. Sycamore City School

Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 35, 641 N.E.2d 188, 196.

{¶ 11} On September 8, 1995, Uffman-Kirsch filed a petition seeking to be

placed on the November 7 ballot as a candidate for mayor of North Royalton. Ten

days later, on September 18, Polo filed his protest with the board against Uffman-

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Kirsch’s candidacy. The board denied his protest on September 19. Seventeen

days after the board’s protest decision, on October 6, Polo filed this prohibition

action. On October 13, the board issued absentee ballots for the November 7 North

Royalton election.

{¶ 12} Extreme diligence and the promptest of action are required in

election cases. State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio

St.3d 45, 49, 600 N.E.2d 656, 659. The court has routinely dismissed complaints

or otherwise denied extraordinary relief in election cases due to laches. Id., 65 Ohio

St.3d at 48, 600 N.E.2d at 659; State ex rel. Weldon v. Franklin Cty. Bd. of Elections

(1964), 176 Ohio St. 92, 26 O.O.2d 438, 197 N.E.2d 802 (dismissal of prohibition

complaints to prevent putting candidates’ names in voting machines and counting

absentee ballots when complaints filed thirty-three days after protests decided);

State ex rel. Peirce v. Stark Cty. Bd. of Elections (1958), 168 Ohio St. 249, 6 O.O.2d

339, 153 N.E.2d 393 (writ of prohibition to remove nominee from ballot denied

because complaint filed after period for replacing nominee for general election);

Pierce v. Brushart (1950), 153 Ohio St. 372, 378, 41 O.O. 398, 401, 92 N.E.2d 4,

7, construing former G.C. 4785-92 (“[W]here a protest is not filed with the board

of elections before the required day prior to the election, it is too late to be effective

and the board of elections may disregard it as it did in the instant case.”).

{¶ 13} The board asserts that Polo was guilty of laches in filing this

prohibition action seventeen days after the board denied his protest. Polo seems to

assert that any delay was justified because, according to his allegations, a record of

the board’s protest hearing was not made available to him until October 2.

However, Polo’s counsel was present at the September 19 hearing. There is no

indication that Polo needed to wait for a hearing transcript prior to seeking a writ

of prohibition. The delay was also prejudicial because by the time any expedited

briefing schedule that we could have ordered would have been completed in this

case, the board of elections could not have made changes in the absentee ballots,

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which have already been mailed. White, supra, 65 Ohio St.3d at 49, 600 N.E.2d at

659; but, cf., State ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d

883, 886 (laches inapplicable where relator did not file statutory protest until twelve

days after declaration of candidacy and petition were filed and did not file

mandamus action until fourteen days after denial of protest because statutory time

limits would have been exceeded even under the best of circumstances).

{¶ 14} For the foregoing reasons, even assuming, arguendo, that Polo’s

objection to Uffman-Kirsch’s residency possesses merit, he is not entitled to

extraordinary relief in prohibition because of laches. Accordingly, the writ is

denied.

Writ denied.

MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and

COOK, JJ., CONCUR.

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