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Louis Chine Jr v. Mahoning County Board of Elections

October 24, 2011

LOUIS CHINE JR., PETITIONER,
v.
MAHONING COUNTY BOARD OF ELECTIONS,
RESPONDENT.



Per curiam.

Cite as Chine v. Mahoning Cty. Bd. of Elections,

OPINION AND JUDGMENT ENTRY CHARACTER OF PROCEEDINGS: Petition for Writ of Mandamus JUDGMENT: Dismissed

JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Mary DeGenaro

[Cite as Chine v. Mahoning Cty. Bd. of Elections, 2011-Ohio-5574.]

{¶1} Relator Louis Chine, Jr. has filed a petition for a writ of mandamus against respondent Mahoning County Board of Elections. Chine seeks to compel the board to certify him as a candidate in the November 8, 2011 election for the Austintown Local School Board. The board rejected Chine's petition for candidacy because the number of verified signatures was less than the number of signatures appearing on the petition. The number of verified signatures was fifteen when the petition actually contained a sixteenth signature that appeared outside the marked area of the petition designated for signatures. The board has filed a motion to dismiss this action, both on procedural and substantive grounds.

Procedural Deficiencies

{¶2} This court is vested with jurisdiction to hear an original mandamus action pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. There are three specific requirements for the filing of an application for a writ of mandamus. The application (1) must be by petition, (2) in the name of the state on the relation of the person applying, and (3) verified by affidavit. R.C. 2731.04. Here, as the board points out, Chine's petition does not meet the second and third requirements - it was not captioned in the name of the state on the relation of the person applying and it was not verified by affidavit.

{¶3} Chine's failure to verify his mandamus petition by affidavit, as required by R.C. 2731.04, is not a fatal defect by itself since the verification requirements contained in R.C. 2731.04 have been displaced by Civ.R. 11. State ex rel. Madison v. Cotner (1981), 66 Ohio St.2d 448, 449, 20 O.O.3d 381, 423 N.E.2d 72; State ex rel. Clark v. Krichbaum, 7th Dist. No. 07-MA-66, 2007-Ohio-3185, ¶10.

{¶4} However, Chine's failure to caption his mandamus action in the name of the state on the relation of the person applying is a different matter. If a respondent alerts a relator of his or her failure to properly caption a mandamus action and the relator does not seek leave to amend his or her complaint to comply with R.C. 2731.04, the mandamus action must be dismissed. Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶36, citing Litigaide, Inc. v. Lakewood Police Dept. Custodian of Records (1996), 75 Ohio St.3d 508, 664 N.E.2d 521. Here, the board of elections alerted Chine of his failure to properly caption his mandamus action by way of its motion to dismiss filed on October 3, 2011. Chine has not responded to the motion or sought leave to amend his complaint to comply with R.C. 2731.04. Therefore, Chine's omission is sufficient grounds to dismiss his mandamus action. Blankenship, supra.

{¶5} The board also argues that Chine's mandamus petition is barred by the doctrine of laches. "Relators in election cases must exercise the utmost diligence."

State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio- 5922, 778 N.E.2d 37, ¶7. "'If relators do not act with the required promptness, laches may bar the action for extraordinary relief in an election-related matter.'" State ex rel. Miller v. Cuyahoga Cty. Bd. of Elections, 103 Ohio St.3d 477, 2004-Ohio-5532, 817 N.E.2d 1, ¶21, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004- Ohio-4960, 815 N.E.2d 1107, ¶12.

{¶6} The board cites Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, in support of its laches argument. Rust involved a prospective candidate in the November 8, 2005 election for the Toledo Board of Election. The prospective candidate filed his nominating petition, including his statement of candidacy, with the Lucas County Board of Elections on August 23, 2005. On September 8, 2005, the board of elections informed him that it was rejecting his petition and refusing to certify his candidacy because the number of signatures verified in the circulator's affidavit was less than the number of signatures appearing on the petition. Twenty-days later, on October 6, 2005, the prospective candidate sued the board in mandamus seeking to have his name placed on the ballot. The Ohio Supreme Court characterized petitioner's waiting twenty-eight days from the time the board notified him of its rejection of his candidacy to the time he filed his mandamus action as prejudicial and dilatory. The Court noted that by the time petitioner filed his mandamus action, the statutory deadline to have absentee ballots printed and ready for use had passed, citing R.C. 3509.01.

{ΒΆ7} Given the very time-sensitive nature of the election cases, Chine's conduct has been equally prejudicial and dilatory as the petitioner in Rust. Here, the board of elections notified Chine that it was rejecting his petition on August 20, 2011. Chine waited ...


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