Opinion
No. 80-1423
Decided October 29, 1980.
Elections — Board of elections — Placement of candidate's name on ballot for unexpired judicial seat — Not enjoinable, when.
IN MANDAMUS and PROHIBITION.
On July 25, 1980, the Governor of Ohio signed into law Am. Sub. S.B. No. 13 which, inter alia, created a new judicial seat on the Fifth District Court of Appeals ("new seat"). On July 31, Judge David D. Dowd, Jr., resigned his position as a Fifth District Court of Appeals judge ("unexpired seat"). At the November 4 general election, a candidate will be elected to fill the new seat, as well as a candidate to fill the term of the unexpired seat.
On August 6, Irene Smart filed her petitions with the Stark County Board of Elections for the new seat. On the same day, Donald R. Ramsayer filed his petitions as an independent candidate for the unexpired seat. On August 13, the board of elections approved and certified Smart and four other candidates for the new seat, but rejected Ramsayer's petitions. The justification for the rejection of Ramsayer's petitions was R.C. 3513.31, which provides the procedure for filling the vacancy for the unexpired seat. That section permits committees of political parties to select candidates to run in the general election to fill the unexpired term of the person who has resigned.
Subsequently, Ramsayer filed suit in United States District Court for the Southern District of Ohio, Eastern Division, seeking an order that he be placed on the ballot for the unexpired seat. ( Ramsayer v. Celebrezze, Jr. [case No. C-2-80-732].) On September 9, Smart withdrew her candidacy for the new seat, which the board of elections unanimously voted to accept on September 12. On September 22, District Court Judge Robert M. Duncan issued his decision in the case of Ramsayer v. Celebrezze, Jr. (unreported). Judge Duncan held R.C. 3513.31 unconstitutional to the extent that it excluded Ramsayer from running for the unexpired seat as an independent candidate. Accordingly, Ramsayer's name was ordered to be placed on the ballot for the unexpired seat. On September 23, the board of elections certified Ramsayer as a candidate for the unexpired seat.
On September 25, Smart, a Democrat, filed petitions of candidacy as an independent for the unexpired seat. On the same day, several electors brought an action in the Court of Common Pleas of Stark County seeking injunctive relief to keep Smart off the ballot. On September 26, the board of elections voted unanimously to place Smart on the ballot for the unexpired seat. On October 9, Judge Gary McKinley, respondent herein, visiting judge on the Court of Common Pleas of Stark County, issued a permanent restraining order enjoining the Secretary of State and the board of elections from printing the name of Smart on the ballot for the unexpired seat.
On October 9, Smart and the board of elections filed this original action seeking, in effect, an order to place Smart on the ballot for the unexpired seat. On October 15, relators' motion to suspend the injunction pending disposition of this action was sustained.
Respondent has filed motions to dismiss and for summary judgment.
Krugliak, Wilkins, Griffiths Dougherty Co., L.P.A., Mr. Samuel Krugliak and Mr. William I. Kohn, for Smart.
Mr. James R. Unger, prosecuting attorney, for Stark County Board of Elections.
Mr. Donald C. Steiner, for respondent.
Since the November 4 general election is less than one week away, this proceeding was properly brought as an original action in this court. Under normal circumstances, an appellate process would last well past the election. Similarly, under normal circumstances, this court is extremely reluctant in entertaining an original action when there is an adequate remedy at law available. State, ex rel. Dormody, v. McClure (1977), 50 Ohio St.2d 335; Transairco v. Common Pleas Court (1976), 45 Ohio St.2d 27; State, ex rel. Peto, v. Thomas (1970), 24 Ohio St.2d 38. But, as we stated in State, ex rel. Tulley, v. Brown (1972), 29 Ohio St.2d 235, 237, the relator need not follow a suicidal course under the "ordinary course of the law" doctrine. Thus, we feel compelled to entertain the instant action.
Respondent, in his opinion enjoining Smart's name from appearing on the ballot, states that "***there exists in this case a compelling state interest in requiring all candidates for the unexpired term to file on time in order to permit the Boards of Elections involved and the Secretary of State time to perform the administrative functions set forth in***" the Revised Code. It is anomalous that relators state, in their brief, that "***both the Secretary of State of Ohio and the Stark County Board of Elections expressly denied that there existed a compelling state interest such that they would be justified in refusing to certify***Smart's candidacy."
The last paragraph of R.C. 3513.31 provides the procedure for nominating candidates for an office when the person holding the office dies or resigns that office "subsequently to the one-hundredth day before the day of a primary election and prior to the fortieth day before the day of the next general election."
In Ramsayer v. Celebrezze, Jr., supra, the federal district court held that this provision, insofar as it forbade the placing of independents on the ballot, is unconstitutional. Respondent did not deny this but rather held that at the least the 65-day limitation contained in R.C. 3513.30, the statute regarding candidate withdrawal, should be used. He further held, in effect, that this limitation, which relator had not complied with, is constitutional.
It is not clear what period of limitation applies. A 65-day period cannot apply when an office holder vacates the office 40 days before the election.
The board of elections, in its discretion, decided to place Smart's name on the ballot for the unexpired seat. In the absence of fraud, corruption, or an abuse of discretion, that decision should not be overturned. See State, ex rel. Gongwer, v. Graves (1914), 90 Ohio St. 311. The board of elections was faced with a difficult situation due to the recent federal district court decision in Ramsayer, supra, and it has not been demonstrated that the board's decision was tainted with fraud, corruption, or an abuse of discretion.
In State, ex rel. Gongwer, supra, we held in paragraph one of the syllabus that: "Elections belong to the political branch of the government and not to the judicial, and are not per se the subject of judicial cognizance, but are matters for political regulation.***" The problem of the applicable and pertinent time limitations for the filing of an independent candidacy under R.C. 3513.31 is now properly placed in the hands of the General Assembly. We refrain from placing such limitation in this case, nor can we agree with respondent's decision to place such a limitation on Smart under the facts of this case.
Prohibition has been used to prevent a board of elections from placing a candidate's name on the ballot where such name may not lawfully be placed on the ballot. State, ex rel. Higgins, v. Brown (1960), 170 Ohio St. 511; State, ex rel. Newell, v. Brown (1954), 162 Ohio St. 147. Further, mandamus may issue to compel a board of elections to put the name of a candidate on the ballot if the cause requires that the board take such action. State, ex rel. Bass, v. Bd. of Elections (1952), 157 Ohio St. 345; Sullivan v. State, ex rel. O'Connor (1932), 125 Ohio St. 387. Based on the reasoning of those cases, it is proper herein to issue an extraordinary writ under these circumstances.
For the foregoing reasons, a writ is issued prohibiting respondent from enjoining the placing of Smart's name on the ballot for the unexpired seat. Accordingly, respondent's motions to dismiss and for summary judgment are denied.
Writ allowed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
DOWD, J., not participating.