The opinion
[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 221.]
THE STATE EX REL. FULLER ET AL. v. MEDINA COUNTY BOARD OF ELECTIONS
ET AL.
[Cite as State ex rel. Fuller v. Medina Cty. Bd. of Elections, 2002-Ohio-5922.]
Elections—Writ of prohibition to prevent Medina County Board of Elections et al.
from placing a referendum on a zoning amendment on certain property in
Brunswick Hills Township on the November 5, 2002 election ballot—Writ
denied, when.
(No. 2002-1744–Submitted October 28, 2002–Decided October 30, 2002.)
IN PROHIBITION.
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Per Curiam.
{¶1} Relators, Gilbert and Henrietta Fuller, own certain property in
Brunswick Hills Township, Medina County, Ohio. On May 14, 2002, upon the
application of Gilbert Fuller, the Brunswick Hills Township Board of Trustees
rezoned three parcels of the Fullers’ property from R-R (Rural Residential) to C-3
(Highway Arterial Commercial).
{¶2} A petition requesting a referendum on the zoning amendment was
circulated. On June 11, 2002, the petitioners submitted the petition to the board of
township trustees pursuant to R.C. 519.12(H). The board of township trustees
transmitted the petition to respondent Medina County Board of Elections, and on
July 1, 2002, the board of elections advised the trustees that the petition contained
191 valid signatures. On August 13, 2002, the board of township trustees approved
the petition and requested the board of elections to place the referendum issue on
the November 5, 2002 election ballot.
{¶3} On August 22, 2002, the Fullers submitted a written protest against the
referendum petition, and respondents, the board of elections, its members, its
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director, and its deputy director, set the matter for a hearing. For one of their protest
grounds, the Fullers claimed that the map attached to the referendum petition “is
incorrect as it distorts the actual adjacent zoning which is misleading and insinuates
inaccuracies thus failing to provide a complete indication of the nature of the
surrounding area and as such is ambiguous and misleading to the average person.”
{¶4} On September 23, 2002, the board of elections conducted a hearing on
the protest. Gilbert Fuller and the Fullers’ attorney attended the hearing and
presented argument in support of their protest. The Fullers contended that the
petition map failed to contain a fourth parcel and that the zoning classification of
an adjacent parcel was misrepresented. At the conclusion of the September 23
hearing, the board of elections denied the protest, determined that the zoning
referendum petition was valid, and ordered the referendum issue placed on the
November 5, 2002 election ballot. On October 3, 2002, the board of elections
mailed a letter informing the Fullers’ attorney of its September 23 decision.
{¶5} On October 10, 2002, the Fullers filed this action for a writ of
prohibition to prevent the board of elections, its members, its director, and its
deputy director from placing the referendum on the township zoning amendment
on the November 5, 2002 election ballot. On October 11, the Fullers filed an
amended complaint requesting the same relief. Respondents submitted an answer,
and the parties filed evidence and briefs pursuant to S.Ct.Prac.R. X(9). Ballots for
the November 5, 2002 election have been prepared, and absentee ballots have been
distributed, with some ballots already returned to the board of elections.
{¶6} This cause is now before the court for a consideration of the merits.
{¶7} Relators in election cases must exercise the utmost diligence. State ex
rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd.
of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, at ¶26.
Therefore, relators requesting extraordinary relief in an election-related matter are
required to act with the required promptness, and if they fail to do so, laches may
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January Term, 2002
bar the action. State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93
Ohio St.3d 592, 595, 757 N.E.2d 1135; see, also, State ex rel. Vickers v. Summit
Cty. Council, 97 Ohio St.3d 204, 2002-Ohio-5583, 777 N.E.2d 830, at ¶13.
{¶8} The Fullers did not act with the required diligence. The Fullers waited
over two months from the date that the referendum petition was submitted to the
board of township trustees to file a protest. Moreover, the Fullers and their attorney
knew of the board’s September 23, 2002 decision to deny their protest at the hearing
on that date. But instead of filing this action for extraordinary relief promptly, they
waited an additional 17 days.
{¶9} They failed to submit credible evidence of any justifiable excuse for
this delay. In their reply brief, they assert that their delay in filing this action was
justified because the board of elections did not send formal notification of its
decision until October 3. But this ignores their actual knowledge of the official
action of the board on September 23. It also does not explain their failure to file a
protest until over two months after the petition was submitted to the board of
township trustees. See, e.g., State ex rel. Cooker Restaurant Corp. v. Montgomery
Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308-309, 686 N.E.2d 238.
Furthermore, in their written protest, the Fullers did not specify all of the grounds
that they asserted at the protest hearing and in this prohibition action. Instead, their
protest challenge to the map attached to the referendum petition was limited to the
alleged “distort[ion of] the actual adjacent zoning.” Cf. State ex rel. Ryant Commt.
v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 113, 712 N.E.2d 696
(“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”).
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{¶10} As a result of the Fullers’ failure to act in a timely fashion, the
statutory date for absentee ballots to be printed and ready for use had passed before
they filed this action on October 10. See R.C. 3509.01.
{¶11} This case is comparable to State ex rel. Polo v. Cuyahoga Cty. Bd. of
Elections (1995), 74 Ohio St.3d 143, 656 N.E.2d 1277, where we unanimously held
that a 17-day delay until October 6 to file an expedited election case for a writ of
prohibition to remove a candidate’s name from the November 7, 1995 election
ballot precluded the prohibition action based on laches. Here, the Fullers waited
17 days until October 10, 2002, to file an expedited election case for a writ of
prohibition to prevent the referendum issue from appearing on the November 5,
2002 election ballot. See, also, State ex rel. Carberry v. Ashtabula (2001), 93 Ohio
St.3d 522, 524, 757 N.E.2d 307 (16-day delay), and Vickers (19-day delay). Under
these circumstances, any delay by the board did not excuse the Fullers’ failure to
exercise the utmost diligence in bringing their challenges to the petition to the board
of elections and to this court. State ex rel. Ascani v. Stark Cty. Bd. of Elections
(1998), 83 Ohio St.3d 490, 493, 700 N.E.2d 1234.
{¶12} Therefore, the Fullers’ prohibition action is barred by laches. By so
holding, we need not address the merits of their claim. See, e.g., Carberry, 93 Ohio
St.3d at 525, 757 N.E.2d 307. We will not indulge in advisory opinions. State ex
rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508,
at ¶18, citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90
Ohio St.3d 238, 242, 736 N.E.2d 893.
Writ denied.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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Lawrence J. Courtney, for relators.
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January Term, 2002
Dean Holman, Medina County Prosecuting Attorney, and William L.
Thorne, Assistant Prosecuting Attorney, for respondents.
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