Opinion
No. 81-1601
Decided October 29, 1981.
Elections — Nominating petitions — Sufficiency — Supplemental part-petitions declared invalid — Incorrect election date — Mandamus — Writ allowed, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On August 19, 1981, appellant, Merlin M. Hill, filed with appellee Cuyahoga County Board of Elections, a nominating petition for the office of council representative for Cleveland's Ward Nine. Appellant was one of two candidates who had filed petitions for that particular office.
On September 2, 1981, appellant was informed that his nominating petition was 14 signatures short of the 200 required to place his name on the ballot. Appellant was also notified that he had five days in which to remedy this insufficiency. Appellant timely filed additional petition papers. However, by letter dated September 22, 1981, appellees informed appellant that his name would not appear on the ballot. The reason given was that his supplemental part-petitions had been declared invalid because "an incorrect election date appears on the face of all part-petitions." The reason for declaring the part-petitions invalid was that they listed October 4, 1981, as the date of the primary election, when, in fact, such election was scheduled to be held on September 29, 1981.
Section 5 of the Cleveland city charter provides, as follows:
"The name of any elector of the City shall be printed upon the ballot, when a petition in the form hereinafter prescribed shall have been filed in his behalf with the election authorities. Such petition shall be signed * * * by at least two hundred (200) electors of the ward if for the nomination for an office to be filled by election from a ward."
It appears clear that although appellees referred to "all part-petitions," they meant only those part-petitions filed after September 2, 1981.
Appellant requested, and was afforded, a hearing before the board of elections. Appellees, however, declined to change their position on the question of the sufficiency and validity of appellant's nominating petition.
Appellant then filed a complaint for a writ of mandamus in the Court of Appeals for Cuyahoga County. Appellant sought to compel appellees to determine the sufficiency and validity of the signatures on his supplemental part-petitions and, presumably, if 14 of said signatures are found valid, to certify appellant's name to be placed on the ballot for the general election to be held on November 3, 1981.
The Court of Appeals refused to issue the writ and the cause is presently before this court on an appeal as of right.
Messrs. Reed, Howard Anderson and Mr. Tyrone E. Reed, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. David A. Williamson, for appellees.
Section 7 of the Charter of the city of Cleveland provides that: "The form of nominating papers shall be substantially as follows:
"We, the undersigned qualified electors of the City of Cleveland (or _____ ward of the City of Cleveland), and residing at the places set opposite our respective names, do hereby request that the name of __________ be placed upon the primary election ballot as a candidate for nomination for the office of __________ at the primary election to be held in said city (or in said ward) on the _____ day of _____, 19_____. * * *."
In his supplemental part-petitions, appellant did insert a date for the primary election. However, the date so inserted was incorrect. Granted that there was a defect in appellant's part-petitions, the question becomes whether such defect is sufficient to invalidate the same. Appellant contends, in essence, that the error was merely a technical defect, having "absolutely no effect" upon the validity of the part-petitions.
Had appellant failed to place any date in the space provided, it is clear that the part-petitions would be invalid. See State, ex rel. Allen, v. Bd. of Elections (1959), 170 Ohio St. 19; cf., Billington v. Cotner (1971), 25 Ohio St.2d 140.
Where, however, as in this case, appellant has not omitted the date for the primary election, but, rather, misstated the same, it is not inappropriate, in determining whether such defect invalidates the part-petitions, to consider the public purpose served by the requirement. See, e.g., State, ex rel. Hanna, v. Milburn (1959), 170 Ohio St. 9, 14 (Taft, J., concurring); cf., State, ex rel. Loss, v. Bd. of Elections (1972), 29 Ohio St.2d 233 It appears that the purpose for requiring the date of the primary election to appear upon the part-petition is to inform the electors who sign the part-petitions as to which election is at issue. That purpose has not been frustrated in this case.
Section 10 of the Cleveland city charter provides, in part, that "* * * [i]n case there shall not be for any office more than two persons who shall have filed petitions as provided for in this Charter, then said persons shall be the candidates at the regular Municipal election and the primary * * * shall not be held." This provision is mandatory and is clearly applicable under the circumstances of this case. There being no primary election required, it is unlikely that the part-petitions' signers were misled by inclusion of the erroneous date. Moreover, the date provided in the part-petitions was sufficient, in this case, to inform the signers thereof of which election or office was in issue. In addition, it is noted that October 4, 1981, fell upon a Sunday.
Section 4 of the Cleveland city charter provides: "Candidates for all offices to be voted for at any Municipal election under the provisions of this Charter shall be nominated at a non-partisan primary election to be held on the fifth Tuesday prior to such Municipal election."
Accordingly, under the facts of this case, we hold that the Court of Appeals erred in refusing to issue the writ of mandamus.
It is therefore ordered that appellees shall place appellant's name on the ballot, as a candidate for the office to which his nominating petition relates, at the November 3, 1981, general election.
The Clerk of the Ohio Supreme Court shall immediately certify this judgment to the Secretary of State and, in the event of appellees' noncompliance, the Secretary of State is directed upon the force of this order to utilize such portion of this order as is necessary to place appellant's name on the November 3, 1981, ballot.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.