State ex rel. Toledo v. Lucas Cty. Bd. of Elections

[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 73.]

THE STATE EX REL. CITY OF TOLEDO v. LUCAS COUNTY BOARD OF ELECTIONS

ET AL.

[Cite as State ex rel. Toledo v. Lucas Cty. Bd. of Elections, 2002-Ohio-1383.]

Elections—Mandamus sought to compel Lucas County Board of Elections and its

members to conduct a special election on May 7, 2002, for the unexpired

term of office for the District 4 Member of the Toledo City Council—Writ

granted, when.

(No. 02-366—Submitted March 22, 2002—Decided March 28, 2002.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} Effective January 8, 2002, Edna Brown resigned her office as a

member of the Toledo City Council to accept a seat in the Ohio General Assembly.

Brown was the District 4 city council representative, and her latest term began in

2001. Following Brown’s resignation, the city council appointed Michael Ashford

to fill the vacancy pending a special election for Brown’s unexpired council term.

{¶ 2} Michael Beazley, the Clerk of the Toledo City Council, requested that

respondent Lucas County Board of Elections conduct a special election for Brown’s

unexpired council term during the May 7, 2002 primary election. Relator, city of

Toledo, satisfied all of the applicable requirements to have the special election to

fill the vacancy placed on the May 7, 2002 election ballot. Several individuals

interested in being candidates for the office obtained blank nominating petitions

from the board. On February 28, 2002, after reviewing an opinion from the Toledo

Director of Law and receiving the advice of the Lucas County Prosecuting

Attorney, the board decided not to certify petitions filed for the unexpired term for

the District 4 council seat in the May 7 primary election.

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{¶ 3} On March 1, 2002, Toledo filed this expedited election action for a

writ of mandamus to compel respondents, the board of elections and its members,

to conduct a special election on May 7, 2002, to fill the city council vacancy.

Respondents filed an answer and a motion for judgment on the pleadings, and the

parties filed evidence and briefs pursuant to the expedited election schedule in

S.Ct.Prac.R. X(9). This cause is now before the court for a consideration of the

merits.

Motion for Judgment on the Pleadings

{¶ 4} Respondents, Lucas County Board of Elections and its members,

request judgment on the pleadings under Civ.R. 12(C). In order to be entitled to

dismissal under Civ.R. 12(C), it must appear beyond doubt that Toledo can prove

no set of facts warranting the requested relief, after construing all material factual

allegations in the complaint and all reasonable inferences therefrom in the city’s

favor. State ex rel. Brantley v. Ghee (1998), 83 Ohio St.3d 521, 522-523, 700

N.E.2d 1258.

{¶ 5} We deny the motion because, like other procedural motions, the

motion is inappropriate in expedited election cases filed here. See, e.g., State ex

rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d 205, 206, 602 N.E.2d 644. 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) determination, making

procedural motions generally inapplicable. State ex rel. Ryant Commt. v. Lorain

Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 111, 712 N.E.2d 696.

{¶ 6} In addition, even if S.Ct.Prac.R. X(5) were applicable here,

respondents’ motion was inappropriate. S.Ct.Prac.R. X(5) requires that any motion

for judgment on the pleadings be filed “at the same time an answer is filed.”

Respondents filed their motion four days after their answer was filed.

{¶ 7} Therefore, we deny respondents’ motion for judgment on the

pleadings and consider the contentions raised therein in our decision on the merits.

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Merits: Preliminary Issues

{¶ 8} Respondents initially assert that Toledo is not entitled to the requested

writ of mandamus because no nominating petitions have yet been filed with the

board by any candidate to run in any municipal election, Toledo is not authorized

to institute a mandamus action, and Toledo lacks standing to bring this mandamus

action.

{¶ 9} Respondents’ claims lack merit. First, it is evident that as of February

28, 2002, the board expressly declared that it would not conduct a municipal

election for the unexpired term of the District 4 council seat. As a consequence

thereof, prospective candidates and other injured persons or entities did not need to

try to file or wait for someone to file nominating petitions for an election that

respondents had already ruled would not occur before they could challenge the

board’s action. See, e.g., State ex rel. White v. Cleveland (1973), 34 Ohio St.2d 37,

63 O.O.2d 79, 295 N.E.2d 665, paragraph two of the syllabus (request for records

not required before bringing mandamus action if circumstances establish that

request would be futile or unavailing); State ex rel. Cincinnati Enquirer v. Krings

(2001), 93 Ohio St.3d 654, 659, 758 N.E.2d 1135; State ex rel. Cotterman v. St.

Marys Foundry (1989), 46 Ohio St.3d 42, 44, 544 N.E.2d 887 (“While it is true that

mandamus relief will be denied if administrative avenues are not exhausted, * * *

it is also true that a person need not pursue administrative remedies if such an act

would be futile”).

{¶ 10} Given the board’s February 28, 2002 decision, some prospective

candidates were undoubtedly discouraged from filing petitions for an election that

the board would not conduct. Toledo need not have waited for candidates to have

filed petitions to challenge the board’s ruling by way of mandamus. See State ex

rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291-292,

649 N.E.2d 1205, quoting State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5,

6, 18 O.O.3d 128, 412 N.E.2d 393 (“Concerning the third prerequisite for a writ *

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* *, given the proximity of the election, an injunction would arguably not constitute

an adequate remedy because any ‘appellate process would last well past the

election’ ”).

{¶ 11} Respondents next assert that the city is authorized to bring a

mandamus action in only two ways, neither of which applies here. But respondents

cite no persuasive, applicable authority for this proposition. Sections 111 and 115

of the Toledo Charter merely specify those instances when the Director of Law has

a mandatory duty to prosecute actions on behalf of the city in general and to institute

mandamus actions due to an officer’s failure to perform a duty in particular.

Neither charter section nor the statutes cited by the board and its members purport

to preclude the law director from, in the exercise of discretion, seeking a writ of

mandamus in other instances on behalf of the city. See, e.g., Toledo Charter Section

109, providing that the Director of Law or City Attorney “shall prosecute or defend

suits for and in behalf of the City,” without limiting that authority. In fact, as the

city notes, a contrary construction of Section 111 of the Toledo Charter would

require that in every lawsuit filed against the city, the law director would have to

obtain a council resolution before defending the city in the suit. And R.C. 715.01

specifies that each municipal corporation may “sue and be sued.”

{¶ 12} As a final preliminary contention, respondents claim that Toledo

lacks standing to bring this action. The applicable test for standing is whether

relator would be directly benefited or injured by a judgment in this case, and this

test applies to mandamus actions concerning election matters. State ex rel. Sinay

v. Sodders (1997), 80 Ohio St.3d 224, 226, 685 N.E.2d 754, and cases cited therein.

Here, respondents’ decision not to conduct the May 7, 2002 special election for the

unexpired term of the District 4 council member directly injured the city in

attempting to enforce its voter-approved charter provisions concerning filling

vacancies in the office of council member. The city has the requisite standing to

commence this mandamus action because of its undeniable interest in having the

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election proceed pursuant to the pertinent charter provisions. See Sinay, 80 Ohio

St.3d at 226, 685 N.E.2d 754, where we held that a township and its board of

trustees had standing as relators to commence a mandamus action regarding an

election matter; see, also, State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections

(1991), 62 Ohio St.3d 17, 577 N.E.2d 645 (home-rule city entitled to writ of

mandamus to compel board of elections and Secretary of State to place on ballot

advisory election on issue of subsequent charter amendments).

Mandamus: Constitutionality of Charter Provisions Concerning Vacancies in

Municipal Offices

{¶ 13} Toledo requests a writ of mandamus to compel the board of elections

and its members to conduct the May 7, 2002 special election for the unexpired term

of office for the District 4 member of the Toledo City Council. In order to be

entitled to the requested extraordinary relief in mandamus, Toledo must establish a

clear legal right to the requested extraordinary relief in mandamus, a corresponding

clear legal duty on the part of the board and its members, and the lack of an adequate

remedy in the ordinary course of the law. State ex rel. N. Olmsted v. Cuyahoga

Cty. Bd. of Elections (2001), 93 Ohio St.3d 529, 532, 757 N.E.2d 314.

{¶ 14} Toledo asserts that it is entitled to the requested extraordinary relief

because the election for the unexpired council term is authorized by its charter.

{¶ 15} Municipal elections are matters of local concern, and under the

home-rule provisions of Sections 3 and 7 of Article XVIII of the Ohio Constitution,

a charter municipality may adopt a method of selecting municipal officials different

from that otherwise provided by law. State ex rel. Haffey v. Miller (1965), 4 Ohio

St.2d 29, 33 O.O.2d 270, 211 N.E.2d 830; State ex rel. Graham v. Cuyahoga Cty.

Bd. of Elections (1979), 60 Ohio St.2d 123, 124, 14 O.O.3d 349, 397 N.E.2d 1204.

Toledo, a charter municipality, through its electors, adopted its own rules

concerning municipal elections to fill vacancies for the offices of mayor and council

member in Section 15A of the charter:

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“If there is a vacancy in the office of Mayor, or member of Council, from a

district or at-large, the vacancy shall be filled first by appointment or succession to

the office as specified in this Charter and filled for the unexpired term at an election

for that purpose as specified below.

“* * *

“If there is a vacancy in the office of a member of Council from a district,

the vacancy shall be filled at the next primary or general election occurring more

than forty-five (45) but less than one hundred eighty (180) days after the date the

vacancy occurred, but if no primary or general election is scheduled during that

time period, then the vacancy shall be filled at a special election on the next

available special election date as specified in state law occurring more than forty-

five (45) days after the vacancy occurred. Each person desiring to become a

candidate to fill the unexpired term shall file nominating petitions with the election

authorities as provided in this Charter not later than the tenth day following the date

on which the vacancy occurred, or on the fortieth day before the date of the election,

which is later, provided that when the vacancy occurs fewer than six (6) days before

the fortieth day before the election, the deadline for filing shall be the thirty-sixth

day before that election.”

{¶ 16} Under Section 15A, once District 4 Council Member Brown

resigned, a special election was required to be conducted for the unexpired term of

her office, with the election held at the same time as the primary election, i.e., May

7, 2002.

{¶ 17} Although charter municipalities such as Toledo can use their home-

rule authority to adopt their own system concerning the election of municipal

officials, these provisions must not violate constitutional requirements. See, e.g.,

Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 82 Ohio St.3d 539,

543, 697 N.E.2d 181. In other words, “[t]he system or plan to be followed in the

nomination and election of the officials of any city is only of interest and concern

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to the people within the limits of the city, and * * * [the city] acts within its authority

when it adopts its own plan, provided it violates no constitutional requirement.”

(Emphasis added.) Fitzgerald v. Cleveland (1913), 88 Ohio St. 338, 357, 103 N.E.

512.

{¶ 18} Respondents claim that Toledo is not entitled to the writ because it

cannot establish a clear legal right to the requested relief and a corresponding clear

legal duty on their part to provide that relief, since Section 1, Article XVII of the

Ohio Constitution requires that all elections for officers other than state or county

officers shall be held in odd-numbered years. For the reasons that follow,

respondents’ claim is meritless, and Toledo is entitled to the writ.

{¶ 19} Section 1, Article XVII of the Ohio Constitution specifies that

elections for elective offices other than state and county officers be held in odd

numbered years:

“Elections for state and county officers shall be held on the first Tuesday

after the first Monday in November in even numbered years; and all elections for

all other elective officers shall be held on the first Tuesday after the first Monday

in November in the odd numbered years.” (Emphasis added.)

{¶ 20} This constitutional provision, however, is followed by a specific

provision concerning filling vacancies in elective offices:

“Any vacancy which may occur in any elective state office created by

Article II or III or created by or pursuant to Article IV of this constitution shall be

filled only if and as provided in such articles. Any vacancy which may occur in

any elective state office not so created, shall be filled by appointment by the

Governor until the disability is removed, or a successor elected and qualified. Such

successor shall be elected for the unexpired term of the vacant office at the first

general election in an even numbered year that occurs more than forty days after

the vacancy has occurred; provided, that when the unexpired term ends within one

year immediately following the date of such general election, an election to fill such

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unexpired term shall not be held and the appointment shall be for such unexpired

term. All vacancies in other elective offices shall be filled for the unexpired term

in such manner as may be prescribed by this constitution or by law.” (Emphasis

added.) Section 2, Article XVII of the Ohio Constitution.

“Where provisions of the Constitution address the same subject matter, they

must be read in pari materia and harmonized if possible.” Toledo Edison Co. v.

Bryan (2000), 90 Ohio St.3d 288, 292, 737 N.E.2d 529. “Constitutional and

statutory provisions should, if possible, be so construed as to give them reasonable

and operable effect.” State ex rel. Grace v. Franklin Cty. Bd. of Elections (1948),

149 Ohio St. 173, 177, 36 O.O. 508, 78 N.E.2d 38.

{¶ 21} In so construing the pertinent constitutional provisions here, it is

evident that Section 1, Article XVII of the Ohio Constitution governs only regularly

recurring elections and is inapplicable to elections to fill vacancies in municipal

offices where the municipal charter prescribes an electoral process in those

circumstances. This gives full effect to both Section 1, Article XVII, which

provides that regularly recurring elections for municipal offices are held on the first

Tuesday after the first Monday in November in odd-numbered years, and Section

2, Article XVII, which provides that elections for vacancies in elective offices other

than elective state offices shall be filled for the unexpired term in the manner

prescribed either by the Constitution or by law, with the election prescribed here by

law, i.e., the Toledo Charter.

{¶ 22} This conclusion comports with precedent. In Jones v. Cleveland

(1932), 124 Ohio St. 544, 548-549, 179 N.E. 741, we held that a Cleveland charter

provision for a special election to fill vacancies thereafter occurring in the office of

mayor did not violate Section 1, Article XVII of the Ohio Constitution even though

the special municipal elections could be held in even-numbered years:

“Section 1 of Article XVII of the Constitution of Ohio has to do only with

regularly recurring elections. Section 2 of that article prescribes the method of

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filling vacancies in elective state offices, which, under conditions stated, is by

election for the unexpired term, and then provides that ‘all vacancies in other

elective offices shall be filled for the unexpired term in such manner as may be

prescribed by law.’ Municipal offices are included in ‘other elective offices.’

Hence the constitutional requirement as to the time of election ‘in odd numbered

years’ can have no reference whatever to any election for the purpose of filling a

vacancy, for it is specifically provided that vacancies shall be filled ‘in the manner

provided by law.’ The contention that vacancies in elective offices cannot be filled

by election becomes absurd when it is observed that the Constitution itself provides

for the filling of vacancies in state offices by election.

“A charter provision authorized by the Constitution itself has the force and

effect of law governing and controlling the affairs of the city. Certainly, having the

power to determine its form of government, the functions and powers of its officers

and the manner of their selection, the municipality may by the same method

determine the manner of filling a vacancy occurring in any such office.”1

(Emphasis added.) See, e.g., 1972 Ohio Atty.Gen.Ops. No. 72-001, where the

Attorney General concluded that “[t]hose portions of a village charter which

provide for the regular election of members of council in odd numbered years, but

which provide for a transition from the old form of government to the new charter

form by a special election of members of council in an even numbered year, are not

inconsistent with Article XVII, Section 1 of the Constitution of the State of Ohio,

and are valid.”

1. The language of Section 2, Article XVII of the Ohio Constitution quoted in Jones was amended

in 1969 to provide, “All vacancies in other elective offices shall be filled for the unexpired term in

such manner as may be prescribed BY THIS CONSTITUTION OR by law.” (Capitalization sic.)

House Joint Resolution No. 26, 133 Ohio Laws, Part III, 3053, 3054. The stated purpose of this

amendment was to provide for the elimination of short-term elections of state officers to fill a

vacancy, where the remainder of the term is less than one year. Id. at 3053.

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{¶ 23} Similarly, the Toledo Charter recognizes that regularly recurring

elections for municipal elective officers in Toledo, i.e., the mayor and members of

council, must be conducted, in accordance with Section 1, Article XVII of the Ohio

Constitution, “on the first Tuesday after the first Monday in November in odd-

numbered years.” Toledo Charter Section 11. Nevertheless, Section 15A of the

Toledo Charter, as authorized by Section 2, Article XVII, as well as Sections 3 and

7, Article XVIII of the Ohio Constitution, further permits special elections to fill

vacancies in the offices of mayor and council member to be held in even-numbered

years.

{¶ 24} This construction of the applicable election provisions is also

consistent with the rule that “laws relative to filling vacancies in elective offices

will be construed so as to give the people the opportunity to choose at the earliest

possible time the successor to an official they have previously chosen.” State ex

rel. Harsha v. Troxel (1932), 125 Ohio St. 235, 238, 181 N.E. 16. By authorizing

the requested election to proceed pursuant to the charter in 2002, Toledo electors

will be given the opportunity to choose a successor to former District 4 Council

Member Brown at a significantly earlier time.

{¶ 25} Moreover, the Secretary of State’s alleged opinion to the contrary,

which the board of elections claims to have relied upon, does not require a different

conclusion. It is true that we will accord greater weight to the interpretation of the

Secretary of State where an election statute is subject to two different but equally

reasonable interpretations. See State ex rel. Oster v. Lorain Cty. Bd. of Elections

(2001), 93 Ohio St.3d 480, 486, 756 N.E.2d 649, and the various cases cited by the

board and its members in their merit brief. Here, however, we are not interpreting

an election statute; we are instead interpreting constitutional and charter provisions.

{¶ 26} In addition, the Secretary of State’s 1998 memorandum, relied upon

by the board of elections, does not require denial of the writ. In that memorandum,

the issue decided was whether Section 1, Article XVII of the Ohio Constitution

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precluded unexpired term elections on November 3, 1998, for vacancies in offices

of charter municipalities whose charters provided that unexpired term elections be

held at “the next general election.” Because the “next general election” for

municipal officers is held in odd-numbered years, see R.C. 3501.02(D) and State

ex rel. Ferguson v. Brown (1965), 2 Ohio St.2d 235, 236, 31 O.O.2d 459, 208

N.E.2d 129, holding a general election on November 3, 1998, manifestly violated

not only Section 1, Article XVII of the Ohio Constitution, but arguably also the

charter provisions themselves. In this case, by contrast and in accordance with the

municipal charter, the unexpired term election is a special election to be held during

the primary election in May 2002.

{¶ 27} Finally, the cases cited by the board are either distinguishable or

unpersuasive. See State ex rel. Higley v. Shale (1940), 137 Ohio St. 311, 18 O.O.

288, 29 N.E.2d 214; Harsha, 125 Ohio St. 235, 181 N.E.16; Grace, 149 Ohio St.

173, 36 O.O. 508, 78 N.E.2d 38; Ferguson, 2 Ohio St.2d 235, 31 O.O.2d 459, 208

N.E.2d 129. Harsha, Grace, and Ferguson involved state or county officers instead

of municipal officers, and in Higley, the court considered neither home-rule charter

provisions nor Section 2, Article XVII of the Ohio Constitution in deciding the

case.

{¶ 28} Based on the foregoing, Toledo has established its entitlement to the

requested extraordinary relief. The board of elections erred in deciding not to

conduct a May 7, 2002 election for the unexpired term of Brown’s council seat.

We grant a writ of mandamus to compel the board of elections and its members to

conduct a special election on May 7, 2002, for the unexpired term for District 4

council member of the city of Toledo. In addition, given the delays caused by the

board and its members’ decision, as well as their request for a five-day extension

to file their merit brief and evidence in this case, the filing deadline in Section 15A

of the Toledo Charter for candidates to file nominating petitions is March 28, 2002.

Therefore, we further hold that prospective candidates for the unexpired council

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term are given until the thirty-sixth day (rather than the fortieth day—March 28)

before the May 7 election, i.e., by Monday, April 1, 2002, to file their nominating

petitions with the board. Cf. Morris v. Macedonia (1994), 71 Ohio St.3d 52, 58,

641 N.E.2d 1075, where we shortened the notice period of Sections 8 and 9, Article

XVIII of the Ohio Constitution when the delay in placing a charter amendment on

the ballot was caused by a city council’s failure to examine petition signatures and

render a prompt determination on their sufficiency when the council had ample time

to do so.

Writ granted.

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

LUNDBERG STRATTON, JJ., concur.

__________________

Barbara E. Herring, Toledo Director of Law, Adam Loukx, Senior

Attorney, and Lora Manon, for relator.

Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell and

Lance M. Keiffer, Assistant Prosecuting Attorneys, for respondents.

__________________

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