[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Duclos v. Hamilton Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-367.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2016-OHIO-367
   THE STATE EX REL. DUCLOS v. HAMILTON COUNTY BOARD OF ELECTIONS
                                            ET AL.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State ex rel. Duclos v. Hamilton Cty. Bd. of Elections,
                           Slip Opinion No. 2016-Ohio-367.]
Elections—Prohibition—Action to remove candidate’s name from primary ballot
barred by laches—Writ denied.
   (No. 2016-0071—Submitted February 1, 2016—Decided February 2, 2016.)
                                      IN PROHIBITION.
                                    ________________
        Per Curiam.
        {¶ 1} In this expedited election case, relator, David B. Duclos, seeks a writ
of prohibition against respondents, the Hamilton County Board of Elections and its
members, Timothy M. Burke, Alex M. Triantafilou, Caleb Faux, and Charles H.
Gerhardt III, to remove the name of Gary W. Lee from the March 15, 2016 primary
                             SUPREME COURT OF OHIO




ballot as a candidate for sheriff. We hold that Duclos’s petition is barred by laches,
and accordingly we deny the writ.
Background
       {¶ 2} On December 1, 2015, Lee filed his petition and declaration of
candidacy at the board of elections. As part of his filing, he submitted a letter from
Judge Robert Winkler, Hamilton County Common Pleas Court administrative
judge, to the director of the board of elections, which indicated:


       [Lee’s] fingerprints have been taken at my direction and he has been
       the subject of a search of local, state, and national fingerprint files
       to disclose any criminal record. Enclosed please find copies of the
       correspondence I have received from the respective agencies
       indicating no disqualifying criminal record on file.


Along with Judge Winkler’s letter, Lee submitted the result sheets of fingerprint
searches from the Hamilton County Regional Crime Information Center and the
Ohio Bureau of Criminal Investigation (“BCI”).           However, contrary to the
statement in Judge Winkler’s letter, a fingerprint-search result sheet from the
Federal Bureau of Investigation (“FBI”) was not attached, and thus not submitted
to the board of elections.
       {¶ 3} Lee’s paperwork also included a journal entry signed by Judge
Winkler. In the entry, Judge Winkler made findings that fingerprint searches by
the FBI and BCI did not disclose any disqualifying criminal convictions and that
Lee was eligible to be a candidate for the office of Hamilton County Sheriff.
       {¶ 4} On January 4, 2016, Duclos filed a written protest with the board of
elections. He alleged that Lee’s application was incomplete because it failed to
include the result sheet of an FBI background check.




                                          2
                                January Term, 2016




         {¶ 5} The board of elections conducted a protest hearing on January 11,
2016. In the course of that hearing, the report from the FBI, showing no relevant
convictions, was entered into evidence. That same day, the board denied the protest
by a vote of four to zero.
         {¶ 6} On January 14, 2016, Duclos, through counsel, filed a mandamus
complaint in this court. Duclos v. Hamilton Cty. Bd. of Elections, case No. 2016-
0052. But five days later (two business days), on January 19, 2016, he filed an
application to dismiss that action because it sought the wrong relief and filed a new
complaint for a writ of prohibition.
         {¶ 7} Respondents and Lee, as an amicus curiae, argue that Duclos
unreasonably delayed bringing this action to their prejudice. We agree.
Laches
         {¶ 8} Laches may bar relief in an election-related matter if the person
seeking relief fails to act with the “ ‘utmost diligence.’ ” State ex rel. Monroe v.
Mahoning Cty. Bd. of Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d
524, ¶ 30, quoting State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio
St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7. While a laches defense rarely
prevails in election cases, we hold that the defense applies to this case because of
Duclos’s failure to act with any diligence whatsoever.
         {¶ 9} Lee’s candidacy was ripe for protest on December 1, 2015, when he
filed his allegedly incomplete paperwork. But Duclos waited over a month, until
January 4, 2016, to file his protest. According to Duclos, he did not discover the
omission of the FBI report until December 16, 2016, when he examined Lee’s
filing. But he does not explain why he waited two weeks to check the filing.
         {¶ 10} In his reply brief, he suggests that his protest was triggered not by
Lee’s filing but by the board’s decision to certify Lee for the ballot on December
21, 2015. But even using that date as the starting point, and even allowing for some
delay over the holidays, Duclos does not explain why he waited two weeks to file




                                          3
                               SUPREME COURT OF OHIO




his protest. And after the board rendered its decision, Duclos caused additional
delay by dismissing his first lawsuit in favor of a second.
           {¶ 11} In all, at least six weeks elapsed between the filing of Lee’s
application and the commencement of suit in this court. Only one of those weeks
was attributable to the board of elections.        This delay has had two serious
consequences. First, had Duclos acted promptly when Lee filed his application, the
board could have adjudicated the protest and Duclos would have had ample time to
consult with counsel and file suit in this court before December 16, 2015, the 90th
day before the date of the election. In other words, the delay caused this case to
become an expedited election case, which constitutes prejudice for purposes of
laches. State ex rel. Willke v. Taft, 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d
536, ¶ 18.
           {¶ 12} Second, and of greater seriousness, Uniformed and Overseas
Citizens Absentee Voting Act absentee ballots became available on Saturday,
January 30, 2016. Because Duclos failed to act with appropriate speed, voting in
the contested primary has begun with the matter still unresolved and, therefore, with
the possibility of disqualification still hanging over Lee’s candidacy.
           {¶ 13} “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, 74 Ohio St.3d 143, 145, 656 N.E.2d
1277 (1995). We hold that all the elements of laches are present in this case. Given
this disposition, we offer no comment on the other legal arguments raised by the
parties.
Conclusion
           {¶ 14} We deny Duclos’s petition for a writ of prohibition on the grounds
of laches.
                                                                          Writ denied.




                                           4
                                January Term, 2016




       O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
       PFEIFER and KENNEDY, JJ., concur in judgment only.
       O’NEILL, J., concurs separately in judgment only.
                                _________________
       O’NEILL, J., concurring in judgment only.
       {¶ 15} I concur in judgment only. I would also deny the request for a writ
of prohibition, but I would do so for a different reason.
       {¶ 16} I agree that respondents, the Hamilton County Board of Elections
and its members, did their job, but I write separately to state my view that the writ
should be denied based on the merits of the claim made by relator, David. B.
Duclos. The question presented is significant. This court should determine what
material a candidate for sheriff must file with a board of elections, and in turn
disclose to the public, in support of his or her qualifications for the ballot. To
dismiss on the issue of laches does a disservice to the legal concept. There was no
unreasonable delay by this relator.
       {¶ 17} Gary W. Lee, the candidate for sheriff, filed his petition to be placed
on the ballot on December 1, 2015. That was 61 days before the ballots needed to
be mailed under the Uniformed and Overseas Citizens Absentee Voting Act. No
one on the face of the earth, including relator, could have known of the alleged
defect in the petition prior to that date. Indeed, there was nothing to file in a court
until the board of elections had reviewed the petition. Relator took all of two weeks
after the petition was certified, from December 21, 2015, to January 4, 2016, to
sound the alarm to the board of elections through a written protest. The board
conducted a hearing one week later on January 11, 2016. Eight days after a final
decision from the board, relator filed a complaint in this court. That is not sitting
on one’s rights for purposes of laches. See State ex rel. Hackworth v. Hughes, 97
Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 27 (petition for writ that was
filed in this court three days after city council failed to place charter amendment on




                                          5
                             SUPREME COURT OF OHIO




ballot not barred by laches). Relator took advantage of an alternative legal remedy
available within the administrative structure of the board of elections. Now this
court finds that doing so was unreasonable and prejudiced respondents. .
        {¶ 18} We can and should absolutely deny this petition on the merits. Lee
strictly complied with the plain language of R.C. 311.01(B)(6) by “notify[ing] the
board of elections * * * of the judge’s findings” and with the plain language of R.C.
311.01(B)(7). Lee simply did not need to provide every bit of paperwork reviewed
by Judge Winkler to the board of elections. The judge’s findings were sufficient,
and the board of elections and its members complied with their legal duties. In light
of this court’s preference for resolving cases on their merits, Hackworth at ¶ 26,
rather than on procedural minutiae, we should give boards of elections a real answer
to a real question. .
        {¶ 19} I would deny the writ on its merits and not on laches. This time line
is not a precedent anyone would want to follow.
                               _________________
        Lisa Rabanus, for relator.
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T.
Stevenson and Cooper D. Bowen, Assistant Prosecuting Attorneys, for
respondents.
        Charles M. Miller, in support of respondents for amicus curiae, Gary Lee.
                               _________________




                                         6
