Summary
explaining that an appellant cannot "present * * * new arguments for the first time on appeal"
Summary of this case from In re S.W.Opinion
No. 92-1334
Submitted and decided September 22, 1992 — Opinion announced December 9, 1992.
Reporter's Note: This appeal was affirmed in an entry dated September 22, 1992, "consistent with the opinion to follow." See 65 Ohio St.3d 1404, 598 N.E.2d 1158. The "opinion to follow" is announced today.
APPEAL from the Court of Appeals for Trumbull County, No. 92-T-4698.
On May 8, 1992, appellant, Anthony Gutierrez, filed a complaint in mandamus in the Court of Appeals for Trumbull County, seeking to compel appellee, the Trumbull County Board of Elections, to place him on the June 2, 1992 primary ballot as a Democratic candidate for Sheriff of Trumbull County. The complaint alleged that appellant was a fully qualified candidate for the office of sheriff, but that appellee had wrongfully rejected his application for candidacy and denied him an opportunity to contest the rejection. Appellant claimed to have filed his application with appellee before 4:00 p.m., February 20, 1992, the statutory deadline, and also claimed that he had been fingerprinted and that a search of national, state, and local fingerprint files had begun before the statutory deadline. Nevertheless, appellee rejected appellant's application on February 26, 1992.
Appellee claimed to have rejected appellant's application because it had been filed too late to provide for a background check before the statutory filing deadline and because appellant's statutorily required residence and employment histories had not been submitted prior to the statutory deadline.
Also on May 8, 1992, the date he filed his complaint, appellant filed a "motion of prejudice" in the court of appeals. The gist of that motion was that the court of appeals had, on April 27, 1992, dismissed appellant's previous mandamus action with intent to prejudice his candidacy and that the court of appeals should therefore disqualify itself from the instant case.
On May 18, 1992, appellee filed a motion to dismiss the complaint for failure to state a claim on which relief could be granted on the grounds that appellant had an adequate remedy at law via appeal of the previous action dismissed on April 27 and that the documents attached to the instant complaint showed that the fingerprint check had not been forwarded to the board of elections before the February 20 deadline, as required by R.C. 311.01(B)(6).
On May 21, 1992, the court of appeals issued its opinion and judgment entry granting the motion to dismiss and denying the writ. The court held that the documents attached to the complaint established that the results of the fingerprint search had not been submitted to respondent prior to the statutory deadline of February 20. The court also held that appellant's "motion of prejudice" was an improperly filed affidavit of prejudice and denied it.
The primary election took place on June 2, 1992. Appellant filed his notice of appeal in the court of appeals on June 19, 1992, and in this court on July 9, 1992. No attempt was made to expedite the appeal after the court of appeals' May 21 decision.
On August 31, 1992, appellant filed his merit brief and a motion to advance the case on the docket. He contends in the brief that this court may place him on the ballot for the general election to be held November 3, 1992.
The cause is now before this court upon an appeal as of right.
Mark S. Colucci and Sherman J. Miles, for appellant.
We affirm the judgment of the court of appeals. Appellant's propositions of law are moot, improper, or both. He cites Hill v. Cuyahoga Cty. Bd. of Elections (1981), 68 Ohio St.2d 39, 22 O.O.3d 179, 428 N.E.2d 402, as authority that this court may place on the general election ballot a candidate who has applied only for the primary. Hill involved Cleveland municipal elections for members of city council. The Cleveland City Charter provided that if not more than two persons filed petitions for an office at the primary, the primary should not be held. The relator was one of two persons to file a petition for a particular council seat at the primary. However, the board of elections refused to certify his candidacy because his supplemental petitions incorrectly stated the date of the primary election. He sought a writ of mandamus in the court of appeals, seeking to be placed directly on the general election ballot. The court of appeals denied the writ, but this court reversed, holding that the petition signers would not have been misled by the erroneous date and that since relator was one of only two candidates, making a primary election unnecessary, he was entitled to be placed on the general election ballot.
In the instant case, appellant has submitted no evidence that if he had been admitted to the Democratic primary ballot his certification to the general election ballot would have been automatic. Accordingly, Hill applies only to cases fitting a narrow fact pattern not present here, and there is no authority for placing appellant on the general election ballot, even if he was wrongfully excluded from the primary ballot. Moreover, the primary having occurred before this appeal was even filed, the issues he raises on appeal are moot. State ex rel. Santora v. Cuyahoga Cty. Bd. of Elections (1962), 174 Ohio St. 11, 21 O.O.2d 35, 185 N.E.2d 438.
Appellant also requests that the case not be considered moot because the controversy is capable of repetition yet evading review. However, the constitutional issues appellant raises in propositions of law Nos. 1 and 2 are not properly before this court because they were not raised by the complaint or decided by the court of appeals below. Appellant's sole theory below was that the appellee abused its discretion when it held that his fingerprint record, residence history, and employment history had not been timely filed and when it did not provide a notice of the "hearing" and an opportunity to be heard. Appellant cannot change the theory of his case and present these new arguments for the first time on appeal. See Republic Steel Corp. v. Cuyahoga Cty. Bd. of Revision (1963), 175 Ohio St. 179, 23 O.O.2d 462, 192 N.E.2d 47, syllabus; Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78, 545 N.E.2d 76, 78-79.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.