# State ex rel. The Ryant Commt. v. Lorain Cty. Bd. of Elections

> Ohio Supreme Court · June 23, 1999 · 86 Ohio St. 3d 107

URL: https://www.frixlaw.com/law-library/cases/11151539

## Case

- **Court:** Ohio Supreme Court
- **Decided:** June 23, 1999
- **Citations:** 86 Ohio St. 3d 107; 1999 Ohio 88
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 29 later opinions in the Frix Law Library

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## Opinion text

[This opinion has been published in Ohio Official Reports at 86 Ohio St.3d 107.]

THE STATE EX REL. THE RYANT COMMITTEE ET AL. v. LORAIN COUNTY BOARD
OF ELECTIONS ET AL.

[Cite as State ex rel. The Ryant Commt. v. Lorain Cty. Bd. of Elections,
1999-Ohio-88.]
Prohibition—Writ sought to prohibit Lorain County Board of Elections from
conducting a June 1 special election involving a zoning classification of
land located in the city of Avon—Writ denied, when.
(No. 99-941—Submitted June 22, 1999—Decided June 23, 1999.)
IN PROHIBITION.
__________________
{¶ 1} On March 2, 1999, intervening respondents Robert Barnhart and
Avon Citizens Committee for Avon Commons (“Avon Citizens Committee”) filed
an initiative petition proposing an ordinance amending the zoning classification of
an 85.8507-acre parcel of land located in the city of Avon from C-2 to C-3, which
would permit greater commercial development of the land. The petition consisted
of one hundred twenty part-petitions, with a total of approximately 2,433
signatures. In their petition, the petitioners requested that the proposed ordinance
be submitted to the Avon electors at a June 1, 1999 special election. On the same
date that Barnhart and Avon Citizens Committee filed the petition, representatives
of relators, The Ryant Committee, a committee of Avon citizens, as well as certain
individual Avon residents opposed to the proposed rezoning, photocopied the
petition.
{¶ 2} On March 10, 1999, Avon Clerk of Council Patricia A. Vierkorn
certified the sufficiency of the petition for purposes of the special election by
determining that it contained two thousand thirty-nine valid signatures. The Avon
Charter required that the petition contain 1,959 valid signatures, i.e., thirty percent
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of the 6,529 voters registered on the date of the last preceding general election, in
order to be submitted to the electors at the requested June 1 special election.
Sections 1 and 5, Article X, Avon Charter. Relators filed an objection with Avon
City Council to the clerk’s determination of sufficiency.
{¶ 3} On March 22, 1999, Avon City Council considered the proposed
zoning amendment ordinance, which had been designated as Ordinance No. 61-99.
After the law director noted that passage of the ordinance would subject it to a
referendum, the city council rejected Ordinance No. 61-99 and instead passed
Ordinance No. 62-99, which, in accordance with petitioners’ written request in their
petition and the initiative provisions of the Avon Charter, submitted the proposed
zoning amendment specified in Ordinance No. 61-99 to the electors for a June 1,
1999 special election. On March 24, the city council transmitted certified copies
of Ordinance No. 62-99 to respondent Lorain County Board of Elections for
placement of the proposed rezoning ordinance on the ballot for the June 1 special
election.
{¶ 4} Six days later, on March 30, relators filed a written protest against the
petition with the board. Relators alleged twenty-five separate errors concerning the
clerk’s determination of sufficiency, including the following:
“1) the Avon Commons Rezoning Petition does not contain the required
number of valid signatures for a special election to be held on June 1, 1999; it
contains less than 30% of the registered voters as of November 3, 1998; it contains
less than 1,959 valid signatures;
“2) printed names were counted as valid signatures (ORC Section
3501.38(B));
“***
“5) signatures of non-registered electors or voters were counted (ORC
Section 3501.38(A); 731.37; 3599.13);

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January Term, 1999

“6) signatures with incorrect voting residence addresses were counted as
valid registered electors or voters (ORC Section 3501.38(A) and (C); 3503.06);
“***
“10) duplicate signatures were counted (ORC Section 3501.38(D);
3519.06(E); 731.37; 3599.13);
“11) signatures were counted which were signed by someone other than the
purported signature (ORC Section 3501.38(D); 731.37; 3599.13);
“***
“13) the circulator[s’] statements contai[n] erroneous signatur[e] total[s]
(ORC Section 3501.38(E));
“***
“20) signatures were counted for electors who were registered after
November 3, 1998 (Avon City Charter Article 10, Section 1);
“21) the necessary conditions precedent for the submission of the petition
to electors ha[ve] not been satisfied (Avon City Charter Article 10, Section 1);
“22) non-genuine signatures which do not match the voting registration
records were counted (ORC Section 3501.38(A) and (C); 3503.06);
“23) alterations and corrections were made to the part-petitions (ORC
Section 3501.38(I); 3519.06(C); 731.36(E)).”
{¶ 5} The vast majority of relators’ categories of error did not specify how
many signatures were affected by each error, and relators additionally did not
specify which signatures on which part-petitions they were challenging. Relators
also requested subpoenas for “individuals having testimony and evidence, and
records and documents,” but did not inform the board of any specific individuals or
records that they wanted subpoenaed.
{¶ 6} On April 13, the counsel for the board conducted a preliminary
hearing in order to narrow the issues raised by the protest. At the hearing, the
board’s director noted that the board had determined that the petition contained two

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thousand seventy-five valid signatures, i.e., more than the 1,959 valid signatures
required for the June 1 special election. She further stated that the board treated
newly registered voters as valid petition signers if, in accordance with the criteria
established by the Secretary of State, their registration cards were filed with the
board on or before the time the petition was filed.
{¶ 7} At the preliminary hearing, intervening respondent First Interstate
Development Company1 (“First Interstate”) objected to relators’ failure to specify
their objections to the initiative petition in their protest and noted the following:
“The problem is we have no idea which signatures on which petitions that
[relators] find to be defective, and in order for us to prepare for the hearing to
interview witnesses, to subpoena the appropriate witnesses, unless we know what
specific part-petitions and signatures contained therein that [relators] are protesting,
we have no basis to prepare. And actually the Board has no basis to proceed on a
protest hearing.”
{¶ 8} Relators responded that they would not provide this information until
the board so ordered because they deemed the information to be their attorney work
product. At the same time that relators refused to divulge which specific signatures
they claimed were invalid, they requested that a protest hearing be scheduled for
April 27, rather than the May 10 date suggested by the board’s counsel.
{¶ 9} On April 15, the board, pursuant to its authority under R.C. 3501.11(J)
to compel the production of evidence and in order to identify relators’ specific
claims before conducting a protest hearing, requested that relators provide certain
evidence by April 23. Among other items, the board requested that relators identify
which signatures were being challenged and the reasons for each challenge, and
further requested the names and addresses of the persons who would testify and

1. First Interstate Development Company is a real estate company that owns the rights to develop
and an option to purchase the property that is the subject of the proposed rezoning.

4
January Term, 1999

those whom relators wanted subpoenaed for the protest hearing. On April 23,
relators provided a response to the board’s request for more specific objections. On
May 3, the board’s counsel sent a facsimile copy of a preliminary protest
investigation report in which the board’s director tentatively concluded that most
of relators’ specified challenges were meritless. On May 7, after the board’s
previously imposed deadline had expired, relators notified the board that a
handwriting expert would testify at the May 10 protest hearing.
{¶ 10} On May 10, the board conducted an initial protest hearing before two
of its four members. One of the board members had recused himself due to a
conflict of interest and another member was not present. The board proceeded with
the hearing, and relators refused to have their expert testify because of the presence
of only two board members. The board’s counsel and director detailed the
investigation of relators’ protest and concluded that even after excluding a few
additional signatures based on relators’ protest, the petition had sufficient valid
signatures to warrant submission of the rezoning issue to the electors at the June 1
special election. Two circulators testified that although they circulated part-
petitions in which a person signed for the person’s spouse, they did not knowingly
allow these persons to sign for their spouses. On the same date as the hearing,
relators filed yet another protest, which specified additional signatures that they
challenged.
{¶ 11} On May 20, the board held a final protest hearing, with a third
member who had reviewed the May 10 transcript joining the two board members
who had been present at the May 10 hearing. At the hearing, relators’ handwriting
expert testified that based on clear and convincing evidence, ten signatures on the
petition were not written by the named individuals. Four of these signatures had
been previously invalidated by the board. At the conclusion of the hearing, the
board denied the protest and certified the rezoning issue for the June 1 special
election ballot.

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{¶ 12} On May 13, i.e., seven days before the board’s final protest hearing,
relators filed a complaint in this court for a writ of prohibition to prevent
respondents board and its members from conducting the June 1 special election.
Due to the proximity of the election (i.e., our expedited schedule for the submission
of evidence and briefs under S.Ct.Prac.R. X[9] would not be completed until after
the June 1 special election) as well as relators’ allegations that the board had
delayed ruling on their protest, we issued an entry impounding the ballots and
ordering that the result be sealed and filed with the court. 85 Ohio St.3d 1491, 710
N.E.2d 276. Relators subsequently amended their complaint as a matter of course
pursuant to Civ.R. 15(A) in order to allege that the board’s May 20 rejection of
their protest and certification of the rezoning issue constituted an abuse of
discretion and a clear disregard of applicable election law. We permitted First
Interstate, Avon Citizens Committee, and Barnhart to intervene as respondents. 85
Ohio St.3d 1494, 710 N.E.2d 714. Respondents filed motions to dismiss in addition
to evidence and merit briefs. First Interstate also filed a motion in limine to exclude
some of relators’ evidence and a motion for sanctions.
{¶ 13} This matter is now before the court upon the evidence and briefs of
the parties and the pending motions. The June 1, 1999 special election was
conducted and the sealed result was transmitted to the court on June 3.
__________________
Grendell & Associates, L.L.P., and Timothy J. Grendell, for relators.
Phillips & Co., L.P.A., and Gerald W. Phillips, pro se.
Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A.
Innes, Assistant Prosecuting Attorney, for respondents Lorain County Board of
Elections and its members.
Brunner & Brunner Co., L.P.A., Jennifer L. Brunner, Edwin L. Kirby, Jr.,
and David R. Funk; Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A., and Sheldon

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January Term, 1999

Berns; Chester, Willcox & Saxbe, L.L.P., and J. Craig Wright, for intervening
respondent First Interstate Development Company.
Walter & Haverfield, P.L.L., Barbara R. Marburger and R. Todd Hunt, for
intervening respondents Avon Citizens Committee for Avon Commons and Robert
Barnhart.
__________________
Per Curiam.
Motions to Dismiss
{¶ 14} Respondents filed motions to dismiss this cause. Respondents’
motions are meritless. Respondents the board, its members, and First Interstate
improperly attached to their motions and relied on evidence that is not contained in
relators’ complaint or amended complaint. State ex rel. Fuqua v. Alexander (1997),
79 Ohio St.3d 206, 207, 680 N.E.2d 985, 986-987. In addition, these motions are
generally inappropriate in expedited election cases filed in this court. See State ex
rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d 205, 206-207, 602 N.E.2d 644,
645, construing former S.Ct.Prac.R. VIII(11). Under S.Ct.Prac.R. X(9), the
presentation of evidence and briefs on the merits in expedited election cases is
provided in lieu of a S.Ct.Prac.R. X(5) dismissal determination, making procedural
motions normally inapplicable. See State ex rel. SuperAmerica Group v. Licking
Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 184-185, 685 N.E.2d 507, 509,
quoting Staff Commentary to S.Ct.Prac.R. X(9). Finally, after construing the
allegations of relators’ amended complaint and all reasonable inferences therefrom
in their favor, we find that it is not beyond doubt that relators cannot prove a set of
facts entitling them to the requested writ. State ex rel. Kaylor v. Bruening (1997),
80 Ohio St.3d 142, 684 N.E.2d 1228; State ex rel. Lee v. Trumbull Cty. Probate

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Court (1998), 83 Ohio St.3d 369, 372, 700 N.E.2d 4, 7.2 Therefore, we deny
respondents’ motions to dismiss.
Prohibition; Specificity of Objections and Laches
{¶ 15} Relators request a writ of prohibition to, among other things, prevent
the board and its members from announcing and certifying the June 1, 1999 election
results. We, however, need not address relators’ claims because of their failure to
specify objections in their March 30, 1999 protest in accordance with R.C. 3501.39
and their concomitant failure to act with the diligence and promptness required in
election matters.
{¶ 16} The board has authority under R.C. 3501.11(K) and 3501.39 to
determine the sufficiency and validity of municipal initiative and referendum
petitions. State ex rel. Manos v. Delaware Cty. Bd. of Elections (1998), 83 Ohio
St.3d 562, 564, 701 N.E.2d 371, 372. Like the municipal charter in State ex rel.
Kennedy v. Cuyahoga Cty. Bd. of Elections (1976), 46 Ohio St.2d 37, 39, 75 O.O.2d
100, 102, 346 N.E.2d 283, 285, the Avon Charter makes no reference to the board
of elections, nor does it purport to negate the board’s duties and powers under R.C.
3501.11(K) and 3501.39. If the framers of the Avon Charter had intended to
completely divest boards of elections, which are the local authorities best equipped
to gauge compliance with election laws, of their authority to determine the
sufficiency and validity of municipal initiative and referendum petitions, they
would have done so with unambiguous language. Cf. State ex rel. Sinay v. Sodders
(1997), 80 Ohio St.3d 224, 231, 685 N.E.2d 754, 760. In the absence of express
language in a charter demonstrating a conflict with a statute, it is the duty of courts
to harmonize the provisions of the charter and statutes relating to the same matter.
State ex rel. Regetz v. Cleveland Civ. Serv. Comm. (1995), 72 Ohio St.3d 167, 170-

2. Because respondents board, its members, and First Interstate also filed answers, their untimely
motions to dismiss are actually Civ.R. 12(C) motions for judgment on the pleadings. Lee, 83 Ohio
St.3d at 371, 700 N.E.2d at 7.

8
January Term, 1999

171, 648 N.E.2d 495, 498. Here, council acted pursuant to its charter authority and
that authority does not negate the board of elections’ statutory protest authority.
{¶ 17} R.C. 3501.39(A)(2) provides that a board of elections shall accept
any petition unless a “written protest against the petition * * *, naming specific
objections, is filed, a hearing is held, and a determination is made by the election
officials with whom the protest is filed that the petition violates any requirement
established by law.” (Emphasis added.)
{¶ 18} Relators’ March 30 protest filed with the board contained twenty-
five separate challenges, most of which attacked the validity of petition signatures,
but failed to specify the signatures involved in each challenge. Relators had already
copied the petition on March 2 and had filed a March 22 objection with city council
concerning the clerk of council’s March 10 determination of sufficiency. The
twenty-eight days between March 2 and March 30 provided ample time for relators
to review the part-petitions and board records to formulate specific objections to
specific signatures. Instead, relators chose to include a laundry list of general,
alleged defects. In the absence of specific objections, the board, the petitioners,
and First Interstate were left with one hundred twenty part-petitions containing over
two thousand four hundred signatures and no notice of which specific signatures
were being challenged and for what reasons.
{¶ 19} Relators’ general objections did not give the board, Avon Citizens
Committee, and First Interstate sufficient notice of their claims. As we observed in
State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997),
80 Ohio St.3d 302, 308, 686 N.E.2d 238, 243, “One of the evident purposes of [the
specificity] requirement is to give notice to the petitioner and the opportunity to
present evidence to rebut the objections specified.” That purpose was not achieved
here. First Interstate expressly noted at the April 13 preliminary hearing its inability
to properly defend against relators’ objections without knowing the specific part-
petitions and signatures being challenged by relators. Contrary to relators’ claims,

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the R.C. 3501.39(A)(2) specificity provision did not require them to divulge their
work product or their evidence; it required them only to specify which signatures
out of over two thousand four hundred they were challenging and for what reasons.
Relators did not so specify in their March 30 protest.
{¶ 20} Therefore, relators did not comply with the R.C. 3501.39(A)(2)
specificity requirement when they filed their March 30 protest, and they ultimately
specified their objections twenty-four days later only when they were ordered to do
so by the board.
{¶ 21} Due to relators’ initial failure to comply with R.C. 3501.39(A)(2)
and other conduct, relators’ claims are barred by laches. Extreme diligence and
promptness are required in election matters. State ex rel. Bona v. Orange (1999),
85 Ohio St.3d 18, 20, 706 N.E.2d 771, 773. By failing to initially file specific
objections on March 30, relators necessitated the board’s preliminary hearing on
April 13 as well as the board’s April 15 request for specific objections, to which
relators provided a response on April 23. Relators later refused to have their expert
testify at the May 10 protest hearing and submitted supplemental evidence
challenging additional signatures on May 10, which was sixty-nine days after
relators photocopied the petition and forty-seven days after the city council
transmitted copies of Ordinance No. 62-99 to the board.
{¶ 22} By not promptly submitting a statutorily sufficient protest and by
engaging in acts of gamesmanship that did not assist the board in its objective of
expeditiously determining their challenges, relators commenced a sequence of
dilatory actions that necessitated our order to impound the ballots for the special
election. If relators had acted with the requisite diligence, they would have been
able to file an expedited election case that could have been submitted to the court
pursuant to the expedited election schedule of S.Ct.Prac.R. X(9) well before the
June 1 special election. Instead, relators’ unjustified delaying tactics led to our
impoundment order and resulted in prejudice to the electors of Avon. In fact,

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relators’ actions have now circumvented application of our general rule that
“ ‘election cases are moot where the relief sought is to have a name or an issue
placed on the ballot and the election was held before the case could be decided.’ ”
Bona, 85 Ohio St.3d at 21, 706 N.E.2d at 773-774, quoting In re Protest Filed by
Citizens for the Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 103, 551
N.E.2d 150, 151. Relators’ lack of diligence helped cause the late filing of this
case, which rendered it impossible to have the parties’ evidence and briefs
submitted under S.Ct.Prac.R. X(9) before the June 1 special election.
{¶ 23} Relators contend that any delay was caused by the board’s failure to
conduct a timely protest hearing. This contention is meritless. Any additional delay
by the board in failing to hold a protest hearing does not excuse relators’ delay in
the submission of a proper protest and the election process. State ex rel. Manos v.
Delaware Cty. Bd. of Elections, 83 Ohio St.3d at 563, 701 N.E.2d at 372; State ex
rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 493, 700
N.E.2d 1234, 1237. In fact, much of the board’s delay was directly attributable to
relators’ actions.
{¶ 24} Based on the foregoing, we deny the writ because of laches. Relators
did not act with the requisite diligence in pursuing their protest to the initiative
petition. Because relators’ action is meritless, we also rescind our previous
impoundment order and order the board to publicly declare the June 1 special
election results.3
Writ denied.
MOYER, C.J., F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS and RESNICK, JJ., concur in judgment only.
PFEIFER, J., concurs separately.

3. Based on our holding, we need not address the remaining issues raised by the parties, and First
Interstate’s motion in limine is moot. We also deny First Interstate’s motion for sanctions.

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__________________
DOUGLAS, J., concurring in judgment only.
{¶ 25} While I concur with the majority’s action in dismissing this case, I
do so for an entirely different reason, and that necessitates this writing.
{¶ 26} By entertaining this action, which we do by dismissing the case on
the basis of laches, I believe that the majority has failed to grasp what really
happened in this case and, in the process, has completely missed the issue of the
authority of the Avon City Council to do what it did and, conversely, this court’s
lack of authority to, in this action for a writ of prohibition, review the council’s
action. Instead, the majority focuses on the citizen petition process, the Lorain
County Board of Elections’ action or lack of action, no protest hearing, alleged
invalid petition signatures, and laches. In my judgment, none of these issues is
dispositive because we need not and should not ever reach them.
{¶ 27} What really happened in this case is that the city council properly
rejected the Avon Citizens Committee’s initiative petition (proposed Ordinance
No. 61-99) as the council should have done, and the council did so pursuant to
authority derived from the Avon City Charter. Section 1, Article X of the Charter
reads, in part, “[w]hen so submitted [an initiative petition] * * * the Council shall
take final action, either enacting, amending, or rejecting the proposed ordinance *
* *.” (Emphasis added.) The council followed the charter and, in my view, for
good reason rejected the ordinance proposed by the petitioners. In part, the
petitioners’ proposed ordinance (No. 61-99) stated that “the zoning classification
of the Property consisting of 85.8507 acres * * * is hereby changed from C-2 to C-
3 and that the Zoning Map of the City of Avon be hereby amended to reflect this
change.” Thus, with this language in the ordinance, if city council had passed the
ordinance the change would have, if council had the authority to pass such an
ordinance on this particular piece of property, taken effect in thirty days subject to
referendum pursuant to Section 2, Article X of the Charter, and this is so

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notwithstanding that the petition provided that the matter was to be submitted to
the electors for their determination. At that point, had the foregoing occurred, the
vote really would no longer be on an ordinance initiated by petition but would, in
effect, be a referendum on the action of city council.
{¶ 28} To avoid all of this, the city law director obviously thought through
the entire process and gave solid legal advice to his clients, the mayor and council
members, who wisely followed that advice. Council, after rejecting the ordinance
proposed by the petitioners, then passed its own ordinance (No. 62-99), which
properly submitted to the electors of the city of Avon the ultimate question of
whether the zoning change should be granted. This the council had every right and
power to do and can do, as long as the proper procedures are followed, without
interference by this or any court. In fact, a city’s power of local self-government
includes the right to call an election even to determine matters that are purely
advisory in nature. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991),
62 Ohio St.3d 17, 19, 577 N.E.2d 645, 647. Thus, the Bedford court said that “[t]he
city contends * * * that * * * (1) municipal elections on matters of local concern
are within the powers of local self-government conferred by Section 3, Article
XVIII of the Ohio Constitution, and (2) these powers are self-executing. We
agree.”
{¶ 29} Accordingly, the city council had the authority to proceed as it did.
Neither we nor any other person or entity has the authority to question, in
prohibition or otherwise, such action of the council. This original action should be
dismissed as not stating a cause of action and, because the action seeks relief which
we are not authorized to grant. Because the ultimate result is the same, dismissal,
I concur but only in the judgment of the majority.
RESNICK, J., concurs in the foregoing opinion.
__________________
PFEIFER, J., concurring.

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{¶ 30} I would reach the merits and deny the writ.
__________________

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11151539. Public record. Not legal advice.