State ex rel. Ascani v. Stark County Board of Elections , 83 Ohio St. 3d 490 ( 1998 )

Per Curiam.

Relators assert that they are entitled to writs of prohibition and mandamus to prevent the November 3 election on the off-track-betting issue. The Secretary of State counters that relators’ claims are barred by laches. For the following reasons, we concur with the Secretary of State and deny the writs based on laches.

“The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 145, 656 N.E.2d 1277, 1279. “Extreme diligence and promptness are required in election-related matters.” In re Contested Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 413, 650 N.E.2d 859, 862.

Relators did not act with the requisite diligence and promptness here. Although the local option petition was circulated before June and filed with the board on June 18, Ascani did not file his written statutory protest until ten weeks after the petition was filed and twenty-three days after the board certified the question in the petition to the November 3 election ballot. Canton did not submit its letter in support of Ascani’s protest until five days after the protest. The evidence establishes that relators had at least constructive knowledge of the petition, especially given the local publicity concerning the matter and Ascani’s counsel’s presence at the board’s August 4 certification meeting. They could have discerned their objections to the petition, ie., failure to comply with R.C. 3501.38(J) and constitutional challenges to R.C. 3769.27, either before or at the time the petition was filed with the board. See State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308-309, 686 N.E.2d 238, 243-244.

Relators lack any justifiable excuse for not submitting a protest sooner. Even if relators were not responsible for any delay caused by the board’s tie vote on Ascani’s protest and the subsequent submission of the matter to the Secretary of State, that delay does not excuse or justify their own nearly three-month delay following the filing of the petition to submit a written protest. State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 187, 685 N.E.2d 507, 511.

Relators’ delay in filing a written protest with the board was prejudicial because by the time they filed this action for extraordinary relief, the date for certifying the ballot form had passed, and by the time the expedited briefing schedule was completed, the date for providing absentee ballots had passed. Cooker Restaurant Corp., 80 Ohio St.3d at 309, 686 N.E.2d at 244; see, also, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48-49, 600 N.E.2d 656, 659; R.C. 3505.01; R.C. 3509.01.

In this regard, Ascani erroneously relies on nonelection cases to claim that no prejudice resulted from relators’ failure to act promptly here. Cf., e.g., State ex rel. Roadway Express v. Indus. Comm. (1998), 82 Ohio St.3d 510, 513, 696 N.E.2d 1064, 1067. Nonelection cases do not normally require the “extreme diligence and promptness” required in election cases, nor do they implicate the rights of electors underlying the statutory time limits of R.C. 3505.01 and 3509.01. In re Contested Election of November 2, 1993, Cooker Restaurant Corp., and White, supra; see, also, State ex rel. Spencer v. E. Liverpool Planning Comm. (1997), 80 Ohio St.3d 297, 299, 685 N.E.2d 1251, 1253, where we noted this distinction by stating that “[i]n nonelection cases, laches is an affirmative defense which must be raised or else it is waived.” (Emphasis added.)

Nor does Ascani’s citation of State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291, 649 N.E.2d 1205, 1207, and State ex rel. Rife v. Franklin Cty. Bd. of Elections (1994), 70 Ohio St.3d 632, 640 N.E.2d 522, require that the court resolve the merits of relators’ claims here. Thurn does not discuss laches, and this case involves more than the mere “two-week delay more than two months before an election” in Rife, 70 Ohio St.3d at 635, 640 N.E.2d at 525.

Based on the foregoing, we deny the writs because relators’ claims are barred by laches. This is not a case where the statutory time limits for certifying the ballot form and providing absentee ballots would have been exceeded even “under the best of circumstances.” Cf. State ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883, 886. By resolving this case based on laches, we need not address the merits of relators’ various claims or the Attorney General’s motion for leave to intervene. In re Contested Election on November 7, 1995 (1996), 76 Ohio St.3d 234, 235-236, 667 N.E.2d 362, 363.

Writs denied.

Moyer, C.J., Resnick, Cook and Lundberg Stratton, JJ., concur. Pfeifer, J., concurs separately. Douglas, J., concurs in judgment only. F.E. Sweeney, J., dissents.