On September 12, 2001, the Board convened to "revisit" whether Hartman would appear on the ballot as a Libertarian candidate. (Relators' Memorandum in Support of the Complaint in Prohibition, Transcript of the September 12, 2001 hearing ["Exh. B"], at 2.) The Board voted three-to-one in favor of reconsidering whether Hartman could remain on the ballot as the Libertarian candidate. (Exh. B. at 19-20.) The Board ultimately voted in a tie, two-to-two, "to deny the placement of the name of John Hartman as the Libertarian candidate for council at-large for the City of Lakewood." (Exh. B. 24-26.) Under R.C. 3501.11, the matter was referred to the Secretary of State. Nevertheless, Hartman's name remains on the ballot as the candidate of the Libertarian Party. (Exh. I.)

Relators commenced this action in prohibition to prevent respondents — the Board, the two members who voted to remove Hartman's name from the ballot and the Secretary of State — from removing Hartman's name from the ballot as the candidate of the Libertarian Party. For the reasons stated below, we dismiss this action sua sponte.

Relators acknowledge that Hartman's name remains on the ballot. "For a cause to be justifiable, there must exist a real controversy presenting issues that are ripe for judicial resolution and that will have a direct and immediate effect on the parties. [Burger Brewing Co. v. LiquorControl Comm. (1973),] 34 Ohio St.2d [93,] at 97-98, 63 Ohio Op. 2d [149,] at 151-152, 296 N.E.2d [261,] at 264-265." State ex rel. OhioAcademy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 525,715 N.E.2d 1062, 1118 (Moyer, C.J., dissenting). In light of the fact that both of the decisions by the Board have been in favor of relators, we hold that the facts set forth in relators' complaint do not present issues ripe for judicial resolution and, therefore, relators' claim for relief in prohibition is not justifiable.

Accordingly, we dismiss this action sua sponte. Relators to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

Writ dismissed.

PATRICIA A. BLACKMON J. CONCURS.

TERRENCE O'DONNELL J. CONCURS WITH SEPARATE OPINION.

I concur with the decision reached by the majority, but write separately to set forth my reasons for reaching this determination.

Regarding the action already undertaken by the Cuyahoga County Board of Elections, Hartman contends that two board members, Thomas Coyne and Robert T. Bennett voted to reverse their prior decision and to remove his name from the ballot. Hartman alleges the Board has used its power in a manner unauthorized by law. However, regardless of whether the power had been exercised improperly, no adverse consequence has befallen Hartman as a result of Board action. He remains a candidate on the ballot at this time. Therefore, I concur with the majority opinion insofar as the Board of Elections is concerned because no justifiable issue exists since after the Board action, he remains a candidate on the ballot.

Regarding the Secretary of State, however, in my view, the analysis is different. It is generally recognized that to prevail on a Writ of Prohibition, the Relator must establish three elements: 1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, 2) that the exercise of that power is unauthorized by law, and 3) that denying a writ will result in injury for which no other adequate remedy exists in the ordinary course of the law.State ex rel Ruessman v. Flanagan (1992), 65 Ohio St.3d 464; State exrel. Koren v. Grogan (1994), 68 Ohio St.3d 590; Goldstein v.Christionsen 1994), 70 Ohio St.3d 232.

Here, Hartman is unable to demonstrate that the Secretary of State is about to exercise quasi-judicial power that is unauthorized by law. The Secretary of State is the statutorily designated official empowered by law to decide when a local board of elections reaches a tie vote. R.C.3501.11 provides in part:

In all cases of a tie vote * * * the director or chairman shall submit the matter in controversy * * * to the secretary of state, who shall summarily decide the question and the secretary of state's decision shall be final.

Therefore, because R.C. 3501.11 authorizes the Secretary of State to act in this instance, Hartman cannot establish the elements necessary to obtain a writ of prohibition. For these reasons, I concur with the decision to dismiss this complaint for a writ of prohibition.