State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections

[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 308.]

THE STATE EX REL. COMMITTEE FOR THE REFERENDUM OF CITY OF LORAIN

ORDINANCE NO. 77-01 v. LORAIN COUNTY BOARD OF ELECTIONS ET AL.

[Cite as State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-

01 v. Lorain Cty. Bd. of Elections, 2002-Ohio-4194.]

Elections—Mandamus sought to compel Lorain County Board of Elections to

reinstate its July 25, 2001 certification of signatures on a referendum

petition, vacate and reverse its January 23, 2002 decision sustaining a

protest of signatures on the part petition and to announce and certify the

November 6, 2001 election results for the referendum on Ordinance No. 77-

01—Writ denied, when.

(No. 2002-0524—Submitted August 9, 2002—Decided August 16, 2002.)

IN MANDAMUS.

__________________

Per Curiam.

{¶1} On June 7, 2001, the Council of the city of Lorain, Ohio, enacted

Ordinance No. 77-01, which reclassified approximately 202.7 acres of land located

off Jaeger Road in Lorain from R-1A “Residential” to R-PUD “Residential Planned

Unit Development.” Relator, Committee for the Referendum of Ordinance No. 77-

01, Citizens for a Better Lorain, circulated a referendum petition requesting that

Ordinance No. 77-01 be submitted to Lorain voters at the November 6, 2001

general election. Denver Casto is the chairman of the committee. Casto circulated

certain part-petitions for the referendum, including Part Petition No. 23.

{¶2} On July 6, 2001, the committee filed the referendum petition with the

Lorain Auditor. The petition consisted of 71 part-petitions and contained 2,025

signatures. On July 17, 2001, the city auditor submitted the petition to respondent

Lorain County Board of Elections to certify the number of valid signatures on the

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petition. On July 25, 2001, the board certified that the petition contained 1,584

valid signatures, which exceeded the 1,562 valid signatures needed to place the

referendum on Ordinance No. 77-01 on the November 6, 2001 election ballot.

{¶3} Shortly before the city auditor certified the sufficiency of the petition,

on August 6, 2001, intervening respondent, Thomas Oster, and Evelyn Oster,

taxpayers and resident electors of Lorain, submitted a written protest to the board

challenging the referendum petition and the board’s July 25, 2001 determination

that the petition contained 1,584 valid signatures. Thomas and Evelyn Oster are

owners and officers of Oster Construction, Inc., a corporation engaged in the

business of real estate development, construction, and sales. The corporation owns

a portion of the real property rezoned by Ordinance No. 77-01 and has entered into

a contract to purchase the rest of the rezoned property.

{¶4} In their August 6, 2001 protest, the Osters contested the validity of

three categories of signatures contained in the referendum petition: (1) the

signatures of individuals who signed the petition when they were not registered

electors; (2) the signatures on part-petitions circulated by individuals who were not

registered electors at the time they circulated them; and (3) the signatures on those

part-petitions in which the circulators knew that one or more individuals signing

the petition were not registered electors at the time they signed.

{¶5} On August 30, 2001, the board held a hearing on the Osters’ August 6

protest and denied the protest. On the previous day, Thomas Oster had learned that

one of the signers of Part Petition No. 23 of the referendum petition had signed the

petition, but Casto, the purported circulator of the part-petition, had not presented

the petition to her or witnessed her signature. Oster’s counsel contacted the board’s

attorney, who stated that the board would probably permit him to introduce this

new evidence at the August 30 protest hearing. The board, however, decided not

to consider Oster’s new claims because they had not been the subject of any written

protest. Oster proffered Graff’s affidavit as well as the affidavits of four signers

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January Term, 2002

and prospective signers, stating that Casto and another circulator, John Franko, had

made false and misleading statements to them concerning the effect of Ordinance

No. 77-01.

{¶6} We ultimately upheld the board’s denial of the Osters’ August 6, 2001

protest by denying the writ of prohibition requested by the Osters to prevent the

board and Lorain from proceeding with the November 6, 2001 referendum election

on Ordinance No. 77-01. State ex rel. Oster v. Lorain Cty. Bd. of Elections (2001),

93 Ohio St.3d 480, 756 N.E.2d 649.

{¶7} On September 13, 2001, Thomas Oster (“Oster”) filed a second written

protest with the board of elections against the referendum petition. In this protest,

Oster raised the claims that he had previously tried to raise at the August 30 board

hearing on his first protest. Oster asserted that Casto and Franko had engaged in a

pattern of making false and misleading statements to prospective signers in

violation of R.C. 3599.14, and that Casto falsely swore that he had witnessed the

affixing of every signature on Part Petition No. 23, thereby violating R.C.

3501.38(E). Attached to Oster’s September 13 protest were the five affidavits he

had previously proffered to the board at the August 30 hearing. Graff specified in

her affidavit that she had signed Part Petition No. 23, that it had been presented to

her by two women, and that Casto had never presented the petition to her. In Part

Petition No. 23, Casto had declared under penalty of falsification that he had

circulated the petition and that he had witnessed the affixing of every signature.

{¶8} On September 24, 2001, Oster submitted three additional affidavits to

the board in support of his September 13, 2001 protest. In these affidavits, three

additional signers of Part Petition No. 23 reiterated Graff’s sworn statement that the

part-petition had been presented to them by women rather than Casto and that Casto

had never witnessed their signatures.

{¶9} At the board’s September 24, 2001 meeting, it considered whether it

should schedule a full evidentiary hearing on Oster’s September 13 protest. At the

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meeting, a board member expressed concern about allowing more than one protest

for referendum petitions. The board subsequently decided that in lieu of an

evidentiary hearing on the September 13 protest, it would permit Casto to provide

an affidavit acceptable to the board’s counsel by September 27, 2001, reaffirming

that he witnessed all signatures on the part-petition he circulated. If Casto failed to

file the affidavit by September 27, the board would immediately set a hearing on

Oster’s September 13 protest.

{¶10} On September 27, 2001, the committee provided the board with the

requested affidavit. In his affidavit, Casto stated that he had circulated Part Petition

No. 23, that he had witnessed the affixing of every signature, and that all of the

signatures on the part-petition had been signed in his presence. The board

conducted no further hearings or investigations on the September 13 protest before

the November 6, 2001 election.

{¶11} On October 9, 2001, Oster filed a complaint in the Lorain County

Court of Common Pleas for a writ of prohibition to prevent the board and Lorain

from submitting the referendum on Ordinance No. 77-01 to Lorain electors at the

November 6, 2001 general election. Oster also requested a preliminary injunction.

On October 18, 2001, Oster filed an amended complaint in the common pleas court

in which he added claims for a declaratory judgment that he was entitled to a

hearing before the board on his September 13, 2001 protest and a writ of mandamus

to compel the board to hold a hearing on his September 13 protest. The common

pleas court granted the committee’s motion to intervene as a respondent.

{¶12} On October 19, 2001, Judge Edward M. Zaleski of the common pleas

court held a hearing on Oster’s motion for a preliminary injunction. At the hearing,

numerous witnesses testified that Casto, the purported circulator of Part Petition

Nos. 23 and 26, did not present the petition to them and did not witness their

signatures. In addition, affidavits of various petition signers reiterated, in effect,

that Casto had lied about circulating these part-petitions and witnessing the

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January Term, 2002

signatures contained therein. In an October 17, 2001 deposition, Casto refuted the

testimony of these witnesses by specifying that he had circulated Part Petition No.

23 and that he had witnessed every signature on that part-petition. Casto invoked

his Fifth Amendment privilege against self-incrimination in refusing to answer

questions concerning statements he made to prospective signers.

{¶13} On November 1, 2001, Judge Zaleski continued the hearing on

Oster’s motion for a preliminary injunction and prohibited the board “from

announcing and/or certifying the election results on the Referendum for the City of

Lorain Ordinance No. 77-01, now also known as City of Lorain Issue No. 8 until

there is a final adjudication of the herein action or a modification of this order.”

Judge Zaleski also ordered that “[a]ll information and reports setting forth the

outcome on the election on Issue No. 8 shall be sealed by the Board pending the

final adjudication of the herein action.” The November 1 common pleas court order

was agreed to by the committee, the board, and Oster, and was signed by their

respective counsel.

{¶14} On November 6, 2001, the election of the referendum was held, but

because of the agreed order entered by the common pleas court, the result was

sealed and was not announced or certified. On December 7, 2001, Judge Zaleski

recused himself due to a possible conflict of interest, and the case was assigned to

Judge Kosma J. Glavas.

{¶15} On December 20, 2001, Judge Glavas ordered the board to conduct a

full and complete hearing on Oster’s September 13, 2001 protest. Judge Glavas

denied the claims of the board, committee, and city that laches on the part of Oster

barred his action. Judge Glavas also prohibited the board from announcing and

certifying the November 6, 2001 election result on the referendum.

{¶16} On January 23, 2002, however, Judge Glavas vacated his December

20, 2001 order because Oster had not specifically moved for the affirmative

mandamus relief granted by him. Judge Glavas specified that despite this ruling,

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the board, “on its own volition, has the discretion and authority to afford Oster a

full and complete hearing regarding the September 13, 2001 protest.” Judge Glavas

further dismissed Oster’s prohibition claim for lack of jurisdiction and denied the

committee and board’s motions to dismiss based on laches and res judicata. Finally,

he continued the November 1, 2001 consent entry enjoining the board from

announcing and/or certifying the November 6, 2001 election results for the

referendum issue pending further order of the court.

{¶17} On January 23, 2002, the board held a hearing on Oster’s September

13, 2001 protest. At the hearing, the board decided to proceed with its consideration

of the protest despite Judge Glavas’s January 23 order vacating his previous order

compelling the board to conduct the hearing. The board decided that Judge Glavas

would simply reissue the same order at some future date. Before proceeding, the

board denied the committee’s motion to dismiss the protest because of laches and

res judicata. After being provided the sworn testimony and affidavits of numerous

witnesses from the common pleas court case stating that Casto did not circulate Part

Petition No. 23 and did not witness their signatures on that part-petition, the board

sustained Oster’s September 13, 2001 protest, ruled Part Petition No. 23 invalid,

and decertified the referendum issue for the ballot. The board determined that

without the 23 valid signatures on Part Petition No. 23, the petition did not contain

sufficient valid signatures for placement on the ballot. There was evidence that

Casto did not witness at least ten signatures on Part Petition No. 23.

{¶18} As a result of the board’s January 23, 2002 decision, the common

pleas court dismissed Oster’s case as moot on February 27, 2002.

{¶19} Sixty-nine days following the board’s January 23 decision to sustain

Oster’s protest and decertify the referendum on Ordinance No. 77-01 from the

election ballot, on April 2, 2002, the committee filed this action for a writ of

mandamus to compel the board of elections to reinstate its July 25, 2001

certification of signatures, to announce and certify the November 6, 2001 election

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January Term, 2002

results of the referendum on Ordinance No. 77-01, and to vacate and reverse the

board’s January 23 decision. The board filed an answer in which it admitted many

of the allegations in the committee’s complaint and agreed with the committee that

laches should have barred Oster’s September 13 protest. Oster filed a motion for

leave to intervene as a respondent and a motion to dismiss.

{¶20} In June 2002, we granted Oster’s motion to intervene, granted an

alternative writ, and issued a schedule for the presentation of evidence and briefs.

State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain

Cty. Bd. of Elections, 95 Ohio St.3d 1484, 2002-Ohio-2625, 769 N.E.2d 401. This

case was fully briefed on August 5, 2002.

{¶21} This cause is now before the court for a consideration of the merits.

Mandamus in Election Cases

{¶22} The committee asserts that it is entitled to the requested writ of

mandamus to compel the board to reinstate its July 25, 2001 certification of

signatures, vacate and reverse its January 23, 2002 decision sustaining Oster’s

protest, and announce and certify the November 6, 2001 election results for the

referendum on Ordinance No. 77-01.

{¶23} We may vacate the decision of a board of elections and grant a writ

of mandamus if the committee establishes that the board’s decision resulted from

fraud, corruption, abuse of discretion, or clear disregard of applicable law. See

State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections (1997), 80 Ohio St.3d 176,

179, 685 N.E.2d 502. We may also decide this matter despite the passage of the

election when a court has sealed the election result pending further proceedings.

See, e.g., State ex rel. The Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86

Ohio St.3d 107, 712 N.E.2d 696.

{¶24} The committee claims that the board abused its discretion and clearly

disregarded applicable law when it decided on January 23, 2002, to sustain Oster’s

September 13, 2001 protest and to decertify the referendum election on Ordinance

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No. 77-01. The committee asserts that the protest should have been denied because

of laches and res judicata. The committee further contends that the board erred in

invalidating all of the signatures on Part Petition No. 23. The respondent board

concurs that laches should have barred its further consideration of Oster’s protest,

but it asserts that it did not abuse its discretion in conducting a full hearing on the

protest or in invalidating all of the signatures on Part Petition No. 23. Oster argues

that any claims of laches and res judicata to bar his protest are meritless because of

the committee’s own laches. Oster further contends that the common pleas court’s

rulings in his case barred the committee’s claims. Oster also concurs with the board

that the committee’s violation of R.C. 3501.38(E) rendered Part Petition No. 23

completely defective. For the following reasons, we find that although Oster’s

claims of laches and res judicata are meritless, the committee is nevertheless not

entitled to the requested extraordinary relief in mandamus.

Oster’s Claim of Laches

{¶25} Oster asserts that the committee’s mandamus action is barred by

laches because it waited 69 days to file this action to challenge the board’s January

23, 2002 decision.

{¶26} “It is axiomatic that relators in election cases must act with the utmost

diligence.” State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 479,

764 N.E.2d 971. “A relator seeking extraordinary relief in an election-related

matter bears the burden of establishing that [it] acted with the required diligence,

and if the relator fails to do so, laches may 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.

The public interest in having election cases decided even, as here, after an election

has already been held, requires extreme promptitude. See In re Election of Member

of Rock Hill Bd. of Edn. (1996), 76 Ohio St.3d 601, 606-607, 669 N.E.2d 1116; see,

also, Ryant, 86 Ohio St.3d at 113-114, 712 N.E.2d 696.

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January Term, 2002

{¶27} By delaying 69 days to challenge the board’s January 23, 2002

decision through this extraordinary writ action, the committee did not act with the

extreme diligence and promptness normally required of relators in election cases.

{¶28} Nevertheless, as we have previously held, respondents in an election

case “cannot be afforded the benefit of the doctrine when they come to the court

having substantially contributed to the delay in question.” State ex rel. Commt. for

the Referendum of Ordinance No. 3543-00 v. White (2000), 90 Ohio St.3d 212, 216,

736 N.E.2d 873. Here, the majority of the delay associated with this election

controversy was engendered by Oster’s failure to raise his claims concerning the

committee’s violation of R.C. 3501.38(E) in a more timely fashion by not including

them in his August 6, 2001 protest, not filing his September 13, 2001 protest closer

to his August 29, 2001 discovery of the R.C. 3501.38(E) violation, and not

instituting his common pleas court action until 12 days after Casto filed the affidavit

ordered by the board at its September 24 meeting.

{¶29} Furthermore, the board does not claim that this mandamus action is

barred by laches.

{¶30} Therefore, we reject Oster’s contention that the committee’s claims

are barred by laches.

Oster’s Claim of Res Judicata

{¶31} Oster next contends that because the common pleas court denied the

committee and the board’s claims of laches and res judicata in Judge Glavas’s

entries of December 20, 2001, and January 23, 2002, res judicata bars the

committee from claiming entitlement to a writ of mandamus based on these same

claims.

{¶32} The doctrine of res judicata provides that a “ ‘valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising

out of the transaction or occurrence that was the subject matter of the previous

action.’ ” Kelm v. Kelm (2001), 92 Ohio St.3d 223, 227, 749 N.E.2d 299, quoting

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Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus. “Res

judicata bars the litigation of all claims that either were or might have been litigated

in a first lawsuit.” Hughes v. Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, 767

N.E.2d 725, ¶ 12.

{¶33} Res judicata does not bar the committee’s claims of laches and res

judicata here. Neither the December 20, 2001 nor the January 23, 2002 orders were

valid, final judgments rendered upon the merits. At best, the common pleas court’s

December 20 and January 23 decisions on laches and res judicata were, as that court

noted, “both interlocutory orders” that merged into its dismissal of the entire case

as moot because of the board’s January 23 decision. In the absence of a judgment

on the merits, res judicata does not bar the committee’s claims. See Crestmont

Cleveland Partnership v. Ohio Dept. of Health (2000), 139 Ohio App.3d 928, 933-

934, 746 N.E.2d 222 (denial of claim based on mootness did not bar same claim

from being subsequently raised).

Mandamus-Laches

{¶34} The committee asserts that the board abused its discretion and clearly

disregarded applicable law by sustaining Oster’s September 13, 2001 protest

because Oster’s challenge to the referendum petition was barred by laches. Oster

counters that the committee cannot rely on laches because of its misconduct in

violating R.C. 3501.38(E) by filing a false circulator statement.

{¶35} Oster’s argument has merit. As we expressly held in Commt. for the

Referendum of Ordinance No. 3543-00, 90 Ohio St.3d at 216, 736 N.E.2d 873,

“Although laches is not an affirmative defense in an election matter, i.e.,

respondents are not required to raise the defense, laches is still an equitable

doctrine.” (Emphasis added.) As an equitable doctrine, laches is subject to the

fundamental doctrine that “he who seeks equity must do equity, and that he must

come into court with clean hands.” Christman v. Christman (1960), 171 Ohio St.

152, 154, 12 O.O.2d 172, 168 N.E.2d 153; see, also, Commt. for the Referendum of

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January Term, 2002

Ordinance No. 3543-00, 90 Ohio St.3d at 216, 736 N.E.2d 873, citing Christman

in precluding the application of laches in an election case.

{¶36} The committee mistakenly relies on our decision in State ex rel.

Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 740 N.E.2d

242, to support its contention that the “clean hands” doctrine does not apply to

election cases involving writs of mandamus. In Demaline, 90 Ohio St.3d at 527,

740 N.E.2d 242, we merely held that “[t]he ‘clean hands’ doctrine is inapplicable

here”; we did not hold that this doctrine is never applicable in election cases. In

fact, our decision in Commt. for the Referendum of Ordinance No. 3543-00, 90

Ohio St.3d at 216, 736 N.E.2d 873, establishes otherwise.

{¶37} In addition, in Demaline, 90 Ohio St.3d at 527, 740 N.E.2d 242, we

were faced with only a “minimal delay” on the part of others that did not excuse

relator’s delay.

{¶38} By contrast, the substantial evidence credited by the board here

established that Casto, the committee’s chairman, knowingly violated R.C.

3501.38(E) by filing a false circulator’s statement for Part Petition No. 23.

“[A]lthough there is no mens rea requirement under R.C. 3501.38(E), where a

circulator attests that he witnessed all signatures on a part-petition when in fact he

knows he did not, he cannot be attesting to such a statement in a manner other than

knowingly.” Prince v. Franklin Cty. Bd. of Elections (Dec. 24, 1998), 10th Dist.

No. 98AP-495, 1998 WL 894724; see, also, Morford v. Pyle (1928), 53 S.D. 356,

361-362, 220 N.W. 907. It is unquestionable that “[a] knowing violation of

applicable law would certainly preclude a party from asserting the * * * equitable

[doctrine] of laches.” State ex rel. Mallory v. Pub. Emp. Retirement Bd. (1998), 82

Ohio St.3d 235, 244, 694 N.E.2d 1356.

{¶39} Given Casto’s knowing violation of R.C. 3501.38(E) as well as his

subsequent false statements in his affidavit and deposition testimony, the

committee is precluded from invoking the equitable doctrine of laches to support

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its mandamus claim.1 In addition, the committee agreed to the November 1, 2001

sealing of the election results and delayed 69 days from the board’s January 23,

2002 decision to file this action. Therefore, the board neither abused its discretion

nor clearly disregarded applicable law by refusing to hold that laches barred Oster’s

protest. As noted by Oster, permitting Casto’s knowing violation of R.C.

3501.38(E) to have no consequences on the committee’s attempt to seek

extraordinary relief in mandamus would effectively destroy the integrity of the

election process.

Res Judicata

{¶40} For comparable reasons, the board neither abused its discretion nor

clearly disregarded applicable law by not denying Oster’s protest based on res

judicata.

{¶41} “[R]es judicata is not a shield to protect the blameworthy.” Davis v.

Wal-Mart Stores, Inc. (2001), 93 Ohio St.3d 488, 491, 756 N.E.2d 657. “There is

something wrong with a legal doctrine that could be used in a situation like the one

before us to reward a party for misrepresenting * * * evidence.” Id.

{¶42} We refuse to reward the committee for misrepresenting that its

chairman had complied with R.C. 3501.38(E) when, in fact, he had not. The board

also recognizes that it would be inequitable to apply res judicata here.

{¶43} Therefore, the board did not err in refusing to apply res judicata to

Oster’s September 13 protest.

R.C. 3501.38(E) Circulator Statement

{¶44} Finally, the committee contends that the board erred in invalidating

all of the signatures on Part Petition No. 23 when it concluded that Casto violated

R.C. 3501.38(E).

1. A circulator is an agent of the petitioners and they are bound by the circulator’s acts. See, e.g.,

Nist v. Herseth (S.D. 1978), 270 N.W.2d 565, 569.

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January Term, 2002

{¶45} R.C. 3501.38(E) provides that circulators must attest that they

witnessed the affixing of every signature on the petition papers circulated by them:

{¶46} “On each petition paper, the circulator shall indicate the number of

signatures contained on it, and shall sign a statement made under penalty of election

falsification that the circulator witnessed the affixing of every signature, that all

signers were to the best of the circulator’s knowledge and belief qualified to sign,

and that every signature is to the best of the circulator’s knowledge and belief the

signature of the person whose signature it purports to be.”

{¶47} The board concluded that based on the substantial, credible evidence

introduced by the parties, Casto violated R.C. 3501.38(E) by signing a false

circulator statement because he did not witness every signature on Part Petition No.

23. This conclusion is supported by the evidence in the record. State ex rel. Wolfe

v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182, 185, 724 N.E.2d 771

(“We will not substitute our judgment for that of a board of elections if there is

conflicting evidence on an issue”).

{¶48} Nor did the board err in allowing the introduction of additional

evidence submitted after the September 13 protest. Under R.C. 3501.39(A)(3), the

board was empowered to consider this evidence, particularly since by the time of

the January 23, 2002 hearing, the committee had had notice of this evidence and

the opportunity to rebut and respond to it. Cf. State ex rel. Cooker Restaurant Corp.

v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308, 686 N.E.2d

238.

{¶49} Most important, the board did not abuse its discretion or clearly

disregard applicable law in ruling that all of the signatures on Part Petition No. 23

were invalid. The settled rule is that election laws are mandatory and require strict

compliance and that substantial compliance is acceptable only when an election

provision expressly states that it is. State ex rel. Phillips v. Lorain Cty. Bd. of

Elections (2001), 93 Ohio St.3d 535, 539, 757 N.E.2d 319. R.C. 3501.38(E)

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demands strict compliance. See State ex rel. Barton v. Butler Cty. Bd. of Elections

(1975), 44 Ohio St.2d 33, 35, 73 O.O.2d 156, 336 N.E.2d 849.

{¶50} Notwithstanding the committee’s arguments to the contrary, the

board acted appropriately when it invalidated the entire twenty-third part-petition

where the circulator, Casto, had, contrary to his statement on the part-petition, not

witnessed every signature being affixed to that part-petition. See Prince, supra;

State ex rel. Zahneis v. Hamilton Cty. Bd. of Elections (1971), 27 Ohio App.2d 233,

235-236, 56 O.O.2d 402, 273 N.E.2d 797; see, also, State ex rel. Hinkle v. Franklin

Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 149, 580 N.E.2d 767 (“we denied

a writ of mandamus to compel an election pursuant to [an] earlier petition, in part

because evidence before the board suggested that Hinkle had not witnessed all the

petition signatures declared in the circulator’s statements”). The committee’s

citation of State ex rel. Dennis v. Miller (1971), 28 Ohio St.2d 1, 57 O.O.2d 62, 274

N.E.2d 459, is not persuasive because that case did not involve any claimed

violation of R.C. 3501.38(E).

Conclusion

{¶51} Based on the foregoing, the committee failed to establish that the

board had either abused its discretion or clearly disregarded applicable law by

sustaining Oster’s protest and decertifying the referendum on Ordinance No. 77-

01. Therefore, we deny the writ of mandamus.

Writ denied.

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

LUNDBERG STRATTON, JJ., concur.

__________________

Phillips & Co., L.P.A., and Gerald W. Phillips, for relator.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A.

Innes, Assistant Prosecuting Attorney, for respondent Lorain County Board of

Elections.

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January Term, 2002

Riley, Resar & Associates, P.L.L., and Kenneth R. Resar, for intervening

respondent Thomas Oster.

__________________

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