Hubay v. Ohio Elections Comm'n

• Docket Number: 23AP-108
• Decision Date: 28 December 2023
• Citation: 2023 Ohio 4801
• Parties: Scott M. Hubay, Appellant-Appellant, v. Ohio Elections Commission, Appellee-Appellee.
• Court: Ohio Court of Appeals

1

2023-Ohio-4801

Scott M. Hubay, Appellant-Appellant, v. Ohio Elections Commission, Appellee-Appellee.

No. 23AP-108

Court of Appeals of Ohio, Tenth District

December 28, 2023

APPEAL from the Franklin County Court of Common Pleas No 22CVF03-2004

On brief:

Engel & Martin, LLC, and Joshua Adam Engel, for appellant.

Argued:

Joshua Adam Engel

On brief:

Dave Yost, Attorney General, Bryan B. Lee, and Andrew D McCartney, for appellee.

Argued:

Andrew D. McCartney.

DECISION

LELAND, J.

{¶ 1} Appellant, Scott M. Hubay, appeals from a decision of the Franklin County Court of Common Pleas affirming an order of appellee, the Ohio Elections Commission ("commission"), sanctioning appellant for filing a frivolous complaint with the commission.

I. Facts and Procedural History

{¶ 2} On March 25, 2021, appellant filed a complaint with the commission concerning a mailer that was delivered in October 2020 to residents of Upper Arlington encouraging them to contact district leadership and vote against incumbent school board members over a proposed school district policy to include gender neutral bathrooms in renovated school buildings. As respondents, appellant's complaint listed 37 members of a Facebook group that consisted mostly of parents residing in Upper Arlington who were concerned with school district policy.

{¶ 3} On June 24, 2021, the commission held a first hearing in which appellant testified in support of his complaint. Two commission members recused themselves from the case. After determining appellant named respondents based only on their involvement with a Facebook group, the commission voted 5-0 to dismiss the complaint. The commission then voted 4-1 to hold a future hearing to determine whether appellant's complaint was frivolous.

{¶ 4} On December 2, 2021, the commission met to determine whether appellant's complaint was frivolous. One member was absent, and two other members again recused themselves. The commission's chairman and executive director then discussed whether the commission had a quorum sufficient to act on appellant's complaint:

CHAIRMAN CRITES: So the record should reflect that [two members] are recusing themselves.

Do we have a quorum now?

EXECUTIVE DIRECTOR: We started the meeting with a quorum. We only have four though, to act on this particular case.

CHAIRMAN CRITES: Can we take action, though?

EXECUTIVE DIRECTOR: I believe so. Yes, we've done it before.

CHAIRMAN CRITES: Okay.

EXECUTIVE DIRECTOR: The quorum was commenced with all members present.

* * *

EXECUTIVE DIRECTOR: The [c]ommission is obligated to meet with a quorum, which we did with six persons present, six of the seven. In order to take an action, though, the [commission has to have four persons decide on a particular case * * *.

* * *

EXECUTIVE DIRECTOR: We've got four of the seven present to take action, so it would just take an action by all four people to be so.

(Appellee's Brief, Ex. B, Dec. 2, 2021 Tr. at 3-5.) At the close of the December 2, 2021 meeting, the commission voted 4-0 to find appellant's complaint was frivolous pursuant to R.C. 3517.155(E).

{¶ 5} On February 10, 2022, the commission met to determine the amount of sanctions it would impose on appellant based on legal fees requested by various respondents. The commission voted 5-0 to levy sanctions against appellant, charging a total of $4,369.00 in respondents' attorney fees and $553.35 in commission fees. Lastly, the commission granted appellant's motion to stay the imposition of the fine pending an appeal.

{¶ 6} Appellant filed a notice of appeal with the Franklin County Court of Common Pleas on March 29, 2022. On January 25, 2023, the common pleas court affirmed the commission's order, finding it was in accordance with law and supported by reliable, probative, and substantial evidence. Appellant filed a timely notice of appeal with this court on February 15, 2023.

II.Assignment of Error

{¶ 7} Appellant presents the following sole assignment of error for our review:

The Trial Court committed reversible error in failing to conclude that the March 25, 2022 Order of the Ohio Elections Commission ("OEC") in Hubay v. Bainbridge, et al, Case No. 2021G-OO3, was not supported by reliable, probative, and substantial evidence and was not in accordance with law.

III. Analysis

{¶ 8} R.C. 3517.157(D) and 119.12(A) permit a party adversely affected by a final order of the commission to file an appeal with the Franklin County Court of Common Pleas. Cozad v. Ohio Elections Comm., 10th Dist. No. 22AP-312, 2023-Ohio-839, ¶ 10, citing Gwinn v. Ohio Elections Comm., 187 Ohio App.3d 742, 2010-Ohio-1587, ¶ 10 (10th Dist.). In such an administrative appeal, the trial court considers the entire record to determine whether an order is "supported by reliable, probative, and substantial evidence and is in accordance with law." R.C. 119.12(N). "In applying this standard, the court must 'give due deference to the administrative resolution of evidentiary conflicts.'" Nucklos v. State Med. Bd. of Ohio, 10th Dist. No. 09AP-406, 2010-Ohio-2973, ¶ 5, quoting Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980).

{¶ 9} Our standard of review is more limited than that of the trial court. In an appeal from a trial court's decision on an administrative appeal, a court of appeals does not determine the weight of the evidence. Id. at ¶ 7, citing Rossford Exempted Village School Dist. Bd. of Edn. v. State Board of Edn., 63 Ohio St.3d 705, 707 (1992). Rather, "this court's role is limited to determining whether the court of common pleas abused its discretion." Id., citing Roy v. State Med. Bd. of Ohio, 80 Ohio App.3d 675, 680 (10th Dist.1992). "An abuse of discretion occurs when a trial court's discretionary judgment is unreasonable, arbitrary, or unconscionable." Williams v. Am. Homes 4 Rent Mgt. Holdings, L.L.C, 10th Dist. No. 18AP-627, 2019-Ohio-3740, ¶ 27, citing State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14, 2018-Ohio-3342, ¶ 12, and State v. Meek, 10th Dist. No. 16AP-549, 2017-Ohio-9258, ¶ 23.

{¶ 10} Our review is plenary, however, on the issue of whether the commission's order was in accordance with law. Nucklos at ¶ 7, citing McGee v. Ohio State Bd. of Psychology, 82 Ohio App.3d 301, 305 (10th Dist.1993), and Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992).

{¶ 11} Appellant's sole assignment of error alleges both evidentiary and legal defects in the decision of the common pleas court affirming the commission's order. In asserting legal error below, appellant contends the commission did not have the requisite quorum present when it voted on December 2, 2021 to find appellant's complaint to be frivolous. Under state law, five of the seven members of the commission constitute a quorum. R.C. 3517.152(G)(3). Additionally, the commission may only take action by a majority vote of at least four members. R.C. 3517.152(G)(3); Robinson v. Ohio Elections Comm., 10th Dist. No. 04AP-495, 2004-Ohio-6452, ¶ 10.

{¶ 12} Appellant contends quorum as established in R.C. 3517.152(G)(3) requires the participation of at least five members for the commission to take valid action. "Where a term is not defined in the statute, it should be accorded its plain and ordinary meaning." (Internal quotations omitted.) Thomas v. Logue, 10th Dist. No. 21AP-385, 2022-Ohio-1603, ¶ 15, quoting Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, ¶ 17, citing Sharp v. Union Carbide Corp., 38 Ohio St.3d 69, 70 (1988). We read statutory words and phrases in context and construe them based on the rules of grammar and common usage. R.C. 1.42. "In giving words their common, everyday meaning, it is common for a court to rely on dictionary definitions." Id., citing Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, ¶ 24, and DLZ Corp. v. Ohio Dept. of Adm. Servs., 102 Ohio App.3d 777, 780 (10th Dist.1995). Black's Law Dictionary defines quorum as "the minimum number of members (a majority of all the members, unless otherwise specified in the governing documents) who must be present for a deliberative assembly to legally transact business." Black's Law Dictionary (10th Ed.2014).

{¶ 13} Similarly, Merriam-Webster defines quorum as "the minimum number of officers or members of a body that is required to be present at a given meeting (as to transact business)." Merriam-Webster, Quorum, https://www.merriam- webster.com/dictionary/quorum (accessed Dec. 28, 2023). The "common, everyday" meaning of quorum thus comports with appellant's understanding of the term. Thomas at ¶ 15. It is fundamental to the concept of a quorum that the members of the body be present at the critical juncture, such as at the time of the vote.

{¶ 14} Case law also supports appellant's interpretation. We previously found a commission "cannot act as a body without a quorum." Am. Water Mgt Servs., L.L.C. v. Div. of Oil & Gas Resources Mgt., 10th Dist. No. 17AP-145, 2018-Ohio-3028, ¶ 30. Without a quorum, the remaining members "ha[ve] no power to make any decisions on behalf of the commission." Id. Another court defined quorum as "the number of board members necessary to transact business in the absence of the other members." Monfort Supply Co. v. Hamilton Cty. Bd. of Zoning Appeals, 1st Dist. No. C-080048, 2008-Ohio-6829, ¶ 13. The board in that case lacked the requisite quorum to act because the "four regular members of the board and the sole alternate were recused from the case, leaving only [one board member] to hear and decide the application." Id. at ¶ 14. As a result, "the 'decision' of the board was invalid." Id. Generally, "[i]n the absence of a statute to the contrary, any action by a board requires...