Summary
applying statutory prohibition against candidacy where candidate voted as member of different political party within the preceding four calendar years
Summary of this case from State ex Rel. Billings v. Point PleasantOpinion
Nos. 79-1433 and 79-1436
Decided December 12, 1979.
Elections — Municipal primary — Municipal charter provisions — R.C. 3513.191 provisions applicable, when — Charter not specifically providing otherwise — Article XVIII, Ohio Constitution — Prohibition appropriate remedy, when.
APPEALS from the Court of Appeals for Cuyahoga County.
This cause arises from a decision of the Court of Appeals granting the issuance of a writ of prohibition sought by Edward M. Graham, appellee herein, a member of the Democratic Party. The writ was to prevent the name of Daniel F. McNally, intervenor-appellant, from appearing on the Republican ballot as a candidate for City Council of Lakewood from Ward 3 in the primary and general elections.
On August 2, 1979, McNally filed petitions to be a candidate for the Republican Party nomination for City Council in Ward 3 of Lakewood with the Cuyahoga County Board of Elections, an appellant herein. McNally voted in primary elections in 1975 and 1976 as a Democrat and in 1978 as a Republican. R.C. 3513.191 provides that: "No person shall be a candidate for nomination or election at a party primary if he voted as a member of a different political party at any primary election within the next preceding four calendar years." The nominating petitions signed and filed with the board of elections by McNally contained a statement that: "I have not voted as a member of a different political party at any primary election within the next preceding four years." McNally is a member of the Republican Party and was so at the time when he filed his nominating petitions with the board.
A protest by Norma Hughes, a Republican Party member residing in Ward 3 of Lakewood, contesting the candidacy of McNally was denied by the board. The Court of Appeals issued the writ and the cause is now before this court upon an appeal as of right.
Mr. Edward M. Graham, pro se. Mr. John T. Corrigan, prosecuting attorney, and Mr. David A. Williamson, for appellants.
Messrs. Harbarger, Kelleher, Minni, Treister Carbone and Mr. David R. Harbarger, for intervenor-appellant.
Pursuant to Sections 3 and 7 of Article XVIII of the Ohio Constitution, the "home rule" provisions, a charter municipality may adopt for municipal elections a method of selecting municipal officers different than the method of elections provided for by the legislature. State, ex rel. Haffner, v. Green (1953), 160 Ohio St. 189; State, ex rel. Bindas, v. Andrish (1956), 165 Ohio St. 441. The question here is whether Lakewood, a charter municipality, has exercised the "home rule" privilege to the extent that R.C. 3513.191 does not apply to McNally or other Lakewood city council candidates.
This decision must be based on a reading of the Lakewood Charter. It is not disputed that the charter provides that a council member shall be an elector of the city, a resident of the ward in which he is elected to represent, and a member of the political party in which the nomination is sought. Appellants argue that those provisions are the only qualifications for the candidates and that the city charter dispenses with the four-year voting record qualification contained in R.C. 3513.191. Appellants' argument is without merit. Section 10, Article IX, of the city charter provides: "Where no special provision is made in this Charter governing general, primary or special elections, registration and the conduct of such elections the provisions of the general law of the State of Ohio shall control." (Emphasis added). Since the Lakewood Charter makes no special provision regarding a primary candidate's qualifications, the general law of Ohio controls in this matter. The city charter contains some general provisions relating to a council member, but Section 10 of the charter evinces an intent that the charter is not meant to be exclusive and that Ohio law will rule where the charter does not specifically provide otherwise.
Appellants' reliance on State, ex rel. Bindas, supra, is misplaced. The city of Youngstown's charter involved in State, ex rel. Bindas, and the charter here involved are clearly distinguishable.
We are in agreement with the Court of Appeals that appellee had standing to bring this action in prohibition. State, ex rel. Newell, v. Brown (1954), 162 Ohio St. 147, 150-151. Since prohibition is an appropriate remedy to prevent a board of elections from placing the name of a candidate on a ballot, whose name may not be lawfully placed thereon, we affirm the judgment of the Court of Appeals. State, ex rel. Newell, supra.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.