[Cite as Smith v. Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-5866.]




     SMITH ET AL., APPELLEES, v. SCIOTO COUNTY BOARD OF ELECTIONS;
                                  ESSMAN, APPELLANT.
                    [Cite as Smith v. Scioto Cty. Bd. of Elections,
                        123 Ohio St.3d 467, 2009-Ohio-5866.]
Elections — Appeal from judgment granting a contest and setting aside the result
        of a special election on a proposed amendment to a city charter — Contest
        barred by laches.
(No. 2009-0900 — Submitted October 20, 2009 — Decided November 12, 2009.)
  APPEAL from the Court of Common Pleas of Scioto County, No. 09CIH00067.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment granting a contest and setting
aside the result of a February 3, 2009 special election on a proposed amendment
to the charter of the city of Portsmouth, Ohio. Because the challenge to the
proposed amendment raised in the election contest was not instituted with the
requisite diligence and should have been raised before the election, laches barred
the contest. Therefore, we reverse the judgment of the common pleas court.
                                            Facts
                             Petition to Amend City Charter
        {¶ 2} In August 2008, appellant, Larry C. Essman, and the rest of a
committee of petitioners filed a petition requesting the submission to a vote of the
electors of the city of Portsmouth, Ohio, the following proposed amendment to
Section 47 of the Portsmouth Charter:
        {¶ 3} “Section 47(f): Limitations of Taxing Authority
        {¶ 4} “No taxes may be levied on the property owners of the City of
Portsmouth for the retirement of any bonded indebtedness without the approval of
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such levy by a majority of the electors of the City of Portsmouth. Bonded
indebtedness for the construction, acquisition and/or improvement of City
property costing more than $100,000 in total may be incurred only by approval of
a majority of the electors of the city at the next general election or a special
election called by the Council. Expenditures for the construction, acquisition,
and/or improvement of City property in excess of $100,000 in a fiscal year, not
funded by bonded indebtedness, must be paid from Capital Improvements Funds,
as approved in Section 47(c) and Section 47(d); an appropriate enterprise fund, or
from designated grant funds. This amendment shall become effective immediately
upon passage by a majority of the electors of the City of Portsmouth, Ohio.”
(Emphasis added.)
                                 Ballot Language
       {¶ 5} On the election ballot for the proposed charter amendment, the
foregoing language from the petition was repeated following a heading that
specified: “Approval of a majority of the electors of the City of Portsmouth
needed for Passage.” The ballot form was sent by the Scioto County Board of
Elections to the secretary of state for approval. According to the director of the
board of elections, the ballot accurately reflected the proposed charter
amendment.
                                  Election Result
       {¶ 6} On February 18, 2009, the board of elections certified that 1,159
electors voted on the issue of whether to adopt the proposed charter amendment at
the February 3 special election and that of those votes, 584 voted yes and 575
voted no. The director of the board of elections believed that there may have been
6,000 electors in Portsmouth at the time of the election. The board did not
determine the legal effect of the number of affirmative votes cast on the issue;
instead, the board merely counted the votes and certified the totals.
                                 Election Contest




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       {¶ 7} In March 2009, appellees, Patricia Smith and Michael W. Evans,
filed in the Scioto County Court of Common Pleas a complaint to contest the
special election pursuant to R.C. 3515.09. Although purporting to be an election
contest, appellees’ complaint requested that the court “declare that the proposed
Portsmouth City Charter amendment did not receive the required number of votes
necessary for passage based upon the ballot language at issue or for such other
relief either in equity or at law.” The board of elections filed an answer and a
motion to dismiss in which it claimed that it did not make any declaration
concerning the impact of the voting results. Essman submitted an answer.
       {¶ 8} The common pleas court conducted a hearing on the election
contest on March 24, and the parties submitted briefs. Essman also filed two
motions to dismiss the contest.
       {¶ 9} The common pleas court treated the matter as an election contest
and determined that the ballot had misled electors and that the proposed
amendment had failed.
       {¶ 10} The cause is now before this court upon Essman’s appeal as of
right from the common pleas court’s judgment.
                                   Legal Analysis
       {¶ 11} “We have consistently required relators in election cases to act
with the utmost diligence.” Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-
Ohio-5596, 817 N.E.2d 382, ¶ 19. Laches may bar an action for relief in an
election-related matter if the persons seeking this relief fail to act with the
requisite diligence.   See generally State ex rel. Stoll v. Logan Cty. Bd. of
Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 24.
       {¶ 12} Appellees claimed an election irregularity resulting from the use of
ballot and petition language that was “violative” of statutory requirements and
“inaccurate and misleading.” The challenged language, however, was contained
in the proposed charter amendment incorporated in the petition filed in August



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2008. Appellees could have raised their claims in a timely pre-election protest to
the petition. R.C. 3501.39(A). “Election contests may not be used as a vehicle
for asserting an untimely protest.” Portis v. Summit Cty. Bd. of Elections (1993),
67 Ohio St.3d 590, 592, 621 N.E.2d 1202.
       {¶ 13} Moreover, appellees were aware of or should have been aware of
the ballot language long before the February 3 special election, but they failed to
raise the issue until after the election was completed. See Maschari v. Tone, 103
Ohio St.3d 411, 2004-Ohio-5342, 816 N.E.2d 579, ¶ 33-36, citing In re Contested
Election of Nov. 2, 1993 (1995), 72 Ohio St.3d 411, 413-414, 650 N.E.2d 859.
       {¶ 14} Although Essman did not raise this issue in his answer, he did raise
it in his trial brief. More importantly, “[f]or election cases, laches is not an
affirmative defense, and [persons seeking relief] have the burden of proving that
they acted with the requisite diligence.” State ex rel. Vickers v. Summit Cty.
Council, 97 Ohio St.3d 204, 2002-Ohio-5583, 777 N.E.2d 830, ¶ 13.
       {¶ 15} Appellees’ reliance on our decision in Beck v. Cincinnati (1955),
162 Ohio St. 473, 55 O.O. 373, 124 N.E.2d 120, is misplaced. In Beck, we did
not consider laches. Instead, we held that contestors who had challenged ballot
language after the election were not estopped from raising their claim, even
though they could have raised it before the election, because the irregularity
involved was “ ‘of such substantial nature as to void the results of the election.’ ”
Id. at 476, quoting the trial court opinion.
       {¶ 16} The misleading language inserted in the ballot language for a tax
levy in Beck provided, “If levy passes, there will be no city income tax in 1955 or
1956.” Id. at 474. We concluded that this additional language violated R.C.
3505.06 and exceeded the authority of city council. Id. at 474-475. We further
reasoned that the contestors were not estopped from raising their claim, because
“[i]t is a matter of common knowledge that the majority of electors are not
property holders and therefore undoubtedly were persuaded by the unauthorized




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phrase at issue.” Id. at 476. The alleged irregularity in this case is not so
substantial that relators should be permitted to sleep on their rights until after an
adverse election result.
        {¶ 17} Therefore, laches barred appellees’ election contest, and the
common pleas court erred in granting the contest and setting aside the special-
election result.
                                    Conclusion
        {¶ 18} Based on the foregoing, we reverse the judgment of the common
pleas court granting the election contest. Insofar as appellees challenged the
election result because of the petition and ballot language, they should have raised
their claims in a pre-election protest or proceeding rather than in a postelection
contest. By so holding, we need not address other matters raised by the parties.
See, e.g., Rzepka v. Solon, 121 Ohio St.3d 380, 2009-Ohio-1353, 904 N.E.2d 870,
¶ 34.
        {¶ 19} Insofar as appellees requested the determination of the special-
election result in accordance with their interpretation — that the proposed charter
amendment did not pass, because it did not receive the majority vote of all city
electors rather than simply a majority of those electors that voted in the special
election — that request is outside the scope of an election contest, which
challenges an election result rather than seeking its determination. Unlike the
board of elections in Rzepka, at ¶ 23, which expressly certified that although a
majority of city electors voted in favor of a proposed rezoning ordinance, the
ordinance had been rejected because it had not passed in the ward in which the
rezoning was to occur in accordance with the ordinance’s ward-majority
requirement, the board of elections here did not certify whether the proposed
charter amendment had passed or failed. Appellees’ remedy is thus a declaratory-
judgment action instead of an election contest. We note that there is no appeal as




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of right directly to this court from a common pleas court judgment in a
declaratory-judgment action. We deny appellees’ request for oral argument.
                                                                Judgment reversed.
       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Larry C. Essman, pro se.
       Rodeheffer & Miller, Ltd., and Stephen C. Rodeheffer; and George L.
Davis III Co., L.L.C., George L. Davis III, and George L. Davis IV, for appellees.
                           ______________________




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