S/o ex rel. Ann Marie Donegan v. Cuyahoga County Board of Elections, Case

• Court: Ohio Court of Appeals
• Writing for the Court: PATRICIA ANN BLACKMON, J.
• Decision Date: 10 February 2000
• Docket Number: 00-LW-0788,77575
• Citation: S/o ex rel. Ann Marie Donegan v. Cuyahoga County Board of Elections, Case, 00-LW-0788, 77575 (Ohio App. Feb 10, 2000)
• Parties: S/O EX REL. ANN MARIE DONEGAN, Relator v. CUYAHOGA COUNTY BOARD OF ELECTIONS, Respondent CASE

S/O EX REL. ANN MARIE DONEGAN, Relator v. CUYAHOGA COUNTY BOARD OF ELECTIONS Respondent

No. 77575.

00-LW-0788 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

February 10, 2000

PETITION FOR WRIT OF MANDAMUS

MOTION NOS. 14504, 14422

For Relator: SEAN P. ALLAN, ESQ., Allan & Gallagher, 614 West Superior Avenue, Suite 1300, Cleveland, Ohio 44113.

For Respondent: WILLIAM D. MASON, ESQ., Cuyahoga County Prosecutor, RENO J. ORADINI, ESQ., Assistant County Prosecutor, 8th Floor Justice Center, 1200 Ontario Street Cleveland, Ohio 44113.

OPINION

PATRICIA ANN BLACKMON, J.

On February 2, 2000, Ann Marie Donegan, relator, filed a petition for a writ of mandamus to compel respondent, the Cuyahoga County Board of Elections (hereinafter the "Board"), to remove her name from the ballot in the upcoming March 7 primary election. This court granted relator's application for an alternative writ on February 3, thereby prohibiting the dissemination of absentee ballots and ordered an abbreviated briefing schedule pursuant to Loc.App.R. 45(B)(6). On February 7 the Board filed a motion for summary judgment, and on February 8 relator filed a brief in opposition to respondent's motion and a cross motion for summary judgment. For the reasons that follow, we grant respondent's motion for summary judgment and deny relator's cross motion for summary judgment.

On January 7, 2000, relator filed a declaration of candidacy and petition for the Democratic seat of State Senate District 24. On January 13 or 14 relator verbally notified Tom George, an Administrative Assistant of the Board, that she was considering withdrawing as a candidate and sought advice as to when and how. Mr. George conveyed that she had until January 21, 2000, prior to the meeting of the Board, to submit a formal written request to withdraw. On the evening of January 20, relator sent a written request to withdraw via facsimile copy to William Wilkins, the Director of the Board of Elections. The next day relator was notified that her request to withdraw was denied as untimely filed pursuant to R.C. 3513.30, which required a withdrawal on or before January 18, 2000.

On January 21, 2000, respondent approved the absentee ballot pages. On January 29 and 30, Dayton Legal Blank, Inc. printed and assembled the ballots, and on February 3, 2000, Dayton delivered the ballots to respondent. On January 31, 2000, the Democratic ballot pages for voting devices were printed.

Relator immediately requested an appeal of the rejection of her withdrawal and, on February 1, 2000, the Board heard relator's appeal and voted three to one to reject relator's withdrawal as untimely regardless of the fact that relator verbally notified respondent of her consideration to withdraw on January 18, 2000. The next day, on February 2, relator filed her petition for a writ of mandamus to compel the Board of Elections to remove her name from the ballot.

Mandamus is defined as "a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."

R.C. 2731.01. A court cannot create the legal duty sought to be compelled through a mandamus proceeding; the creation of such a duty is the distinct function of the legislative branch of the

government. State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 591 N.E.2d 1186; Davis v. State ex rel. Pecsok (1936), 130 Ohio St. 411, 200 N.E. 181, paragraph one of the syllabus.

In order to grant relator a writ of mandamus, this court must f ind that the relator has a clear legal right to the relief requested, that the respondent is under a clear legal duty to perform the requested act, and that the relator has no plain and adequate remedy at law. State ex rel. Rogers v. Taft (1992), 64 Ohio St.3d 193, 594 N.E.2d 576; State ex rel. Hodges, 64 Ohio St.3d at 3; State ex rel. Klein v. Cuyahoga Cty. Bd. Of Elections (1995), 102 Ohio App.3d 124, 656 N.E.2d 1031. The writ is to be issued with great caution and only when the way is clear. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1. The writ may not be issued to compel the observance of laws in general, but only to command the performance of a specific act specially enjoined by law to be performed. State ex rel. Stanley v. Cook (1946), 146 Ohio St. 348, 66 N.E.2d 207, paragraph seven of the syllabus. Mandamus also may not be used to compel the performance of a permissive act. State ex rel. Hodges, (54 Ohio St.3d at 4.

When adjudicating an extraordinary writ action in an election matter involving the review of a decision of a board of elections, the writ of mandamus may be issued if it is, determined that the board engaged in fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal provisions. State ex rel. Kelly v. Cuyahoga Cty. Bd. Of Elections (1994), 70 Ohio St.3d 413, 639 N.E.2d 78; State ex rel. White v. Franklin Cty Bd. Of

Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152; State ex rel. O'Donnell v. Cuyahoga Cty. Bd. Of Elections (Feb. 2, 2000), Cuyahoga App. No. 77536, unreported. An abuse of discretion connotes an attitude that is unreasonable, arbitrary or unconscionable. State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. Of Elections (1997), 80 Ohio St.3d 302, 686 N.E.2d 238.

Relator contends the Board. abused its discretion when it decided not to remove her name from the primary ballot because (1) she made it clear to the Board prior to the fiftieth day before the primary that she wanted to withdraw; (2) she followed the directions of a representative of the Board so that the Board should be estopped from denying her withdrawal; and (3) the Board ignored Secretary of State directives regarding untimely withdrawals.

The withdrawal of a candidate prior to a primary election is governed by R.C. 3513.30, which provides, in relevant part, as follows:

(B) Any person filing a declaration of candidacy may withdraw as such candidate at any time prior to the primary election, or, if the primary election is a presidential primary election, at any time prior to the fiftieth day before the presidential primary election. The withdrawal shall be effected and the statement of withdrawal shall be filed in accordance with the procedures prescribed in division (D) of this section for the withdrawal of persons nominated in a primary election or by nominating petition

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(D) Any person nominated in a primary election or by nominating petition as a candidate for election at the next general election may withdraw as such candidate at any time prior to the general election. Such withdrawal may be effected by the filing of a written statement by such candidate announcing the candidate's withdrawal and requesting that the candidate's name not be printed on the ballots. If such candidate's declaration of candidacy or nominating petition was filed with the secretary of state, the candidate's statement of withdrawal. shall be addressed to and filed with the secretary of state. if such candidate's declaration of candidacy or nominating petition was filed with a board of elections, the candidate's statement of withdrawal shall be addressed to, and filed with such board.

According to the plain language of R.C. 3513.30(B) and (D),^[1] in order to withdraw prior to the primary election, relator was required to prepare a statement of withdrawal, address it to the board of elections, and file it with the Board prior to the fiftieth day before the primary, since the primary this year is a presidential primary. The fiftieth day before the March 7 primary was January 17, 2000, but because January 17 was a legal holiday, relator had until January 18 to file her withdrawal with the Board. See R.C. 1.14. Relator admits that she did not send, via facsimile copy, a written request to withdraw to the Board until January 20. Consequently, relator's attempt to withdraw was not in compliance with the statute governing withdrawals prior to primary elections. The fact that the Board abided by the withdrawal deadline set forth in R.C. 3513.30, rather than disregarding it, does not amount to an abuse of discretion by the Board in rejecting relator's statement of withdrawal as untimely. See State ex rel. Clinard v. Greene Cty. Bd. Of Elections (1990), 51 Ohio St.3d 87, 554 N.E.2d 895. What is ironic is that relator is attempting to invoke the issuance of the extraordinary writ of mandamus against a board of elections which abided by a statute when relator herself did not. The slippery slope of "substantial compliance" proposed by relator is not the standard for the issuance of a writ of mandamus. Relator must demonstrate a clear legal. right to the relief requested. State ex rel. Rogers v. Taft (1992), 64 Ohio St.3d 193, 594 N.E.2d 576.

Relator contends, irregardless of the requirements of the statute, that she timely expressed her intent or desire to withdraw verbally. The plain language of the statute, however, requires a written communication. The Board cannot be expected to remove a name from a ballot based upon a verbal communication, nor could the Board be expected to stay the procession of the ballots to the printer based upon a verbal expression of considering, wishing or intending to withdraw. If the General Assembly intended to permit oral communications of withdrawal in relator's circumstance, the General Assembly would not have required the statement of withdrawal to be "filed" with the board.

Relator also contends the Board should be estopped f rom denying her withdrawal because she followed the advice of Mr. George, a representative of the Board, who told her that she had until January 21 to file her...