State ex rel. Balas-Bratton v. Husted

• Decision Date: 02 April 2014
• Docket Number: No. 2014–0374.,2014–0374.
• Citation: 138 Ohio St.3d 527,8 N.E.3d 933
• Parties: The STATE ex rel. BALAS–BRATTON v. HUSTED et al.
• Court: Ohio Supreme Court

138 Ohio St.3d 527

8 N.E.3d 933

The STATE ex rel. BALAS–BRATTON

v.HUSTED et al.

No. 2014–0374.

Supreme Court of Ohio.

Submitted March 28, 2014.

Decided April 2, 2014.

Craig T. Conley, for relator.

Michael DeWine, Attorney General, and Ryan L. Richardson and Erin Butcher–Lyden, Assistant Attorneys General, for respondent Secretary of State Jon Husted.

David M. Bridenstine, Canton, for respondent Stark County Board of Elections.

Roetzel & Andress, L.P.A., Thomas L. Rosenberg, and Michael R. Traven, Columbus, for intervening respondent George T. Maier.

Law Offices of Robert L. Berry, L.L.C., and Robert L. Berry, urging denial of the writ for amicus curiae, Buckeye State Sheriffs Association.

PER CURIAM.

{¶ 1} In this expedited election case, we consider a challenge to George Maier's appearance on the primary ballot for Stark County sheriff. Last year, we ousted Maier from that same office. State ex rel. Swanson v. Maier, 137 Ohio St.3d 400, 2013-Ohio-4767, 999 N.E.2d 639. After his ouster, Maier obtained full-time employment as a Harrison County deputy sheriff. The Stark County Democratic Central Committee (“DCC”) apparently believed that this employment cured the defect in his qualifications identified in Swanson and once again appointed him Stark County sheriff. So that he can run for that office to fill the still-unexpired term, he submitted an application to be a candidate for sheriff in the May 6, 2014 Democratic primary election.

{¶ 2} Relator, Cynthia Balas–Bratton, filed a protest with the Stark County Board of Elections (“BOE”) claiming that Maier remains unqualified to be a candidate for sheriff. The BOE's vote on the protest ended in a tie regarding some of Maier's qualifications, and respondent Secretary of State Jon Husted broke the tie in favor of denying the protest and allowing Maier to remain on the primary ballot. Balas–Bratton filed this action in prohibition to order the BOE and Husted to remove a BOE member for purposes of this protest because the member is biased in favor of Maier and to order Husted to remove Maier from the primary ballot.

{¶ 3} The issues in this case are (1) whether a member of the BOE should (or could) have been removed from the BOE for bias in favor of Maier and (2) whether Husted abused his discretion in breaking the BOE's tie vote on Maier's qualificationsand allowing Maier to remain on the ballot.

{¶ 4} Because neither Husted nor the BOE has the clear authority to remove a board of elections member for bias and because Husted did not abuse his discretion in allowing Maier to remain on the ballot, we deny the writ.

Facts

Maier's ouster as sheriff of Stark County

{¶ 5} George Maier was appointed by the DCC as sheriff of Stark County when the sheriff-elect was unable to assume the office for health reasons. His appointment was challenged in quo warranto, and last year, this court issued a writ ousting him as Stark County sheriff. Swanson, 137 Ohio St.3d 400, 2013-Ohio-4767, 999 N.E.2d 639, ¶ 40. We based our decision on Maier's failure to meet the requirements under R.C. 311.01(B)(8), subsection (a)¹ which requires, among other things, that a county sheriff have been employed within the four years immediately prior to the statutory qualifying date as a highway patrol officer or “as a full-time peace officer as defined in section 109.71 of the Revised Code performing duties related to the enforcement of statutes, ordinances, or codes.” Although he had been a highway patrol officer, his employment there ended before the qualifying time period. Id. at ¶ 30.

{¶ 6} Maier held two other positions that he asserted qualified him under R.C. 311.01(B)(8)(a), but the court found that neither satisfied the statute, as he had held neither position full-time. The first position, assistant director of the Department of Public Safety, was not full-time, because not all his working hours were devoted to peace-officer duties. Id. at ¶ 37. The second, a brief stint as a deputy sheriff of Harrison County, was not full-time, because he worked only a single weekend, and therefore failed to meet the definition of “full-time” for county employees in R.C. 325.19, that is, a total of 40 hours a week. Id. at ¶ 38. Because we found him unqualified under R.C. 311.01(B)(8), we declined to consider the challenges to his qualifications under R.C. 311.01(B)(9). Id. at ¶ 39.

Maier is reappointed as sheriff

{¶ 7} Shortly after he was ousted, Maier went back to work for Harrison County as a deputy sheriff, but this time remained in the position full-time for four weeks. Apparently believing that this cured the defect in his qualifications found by the court, he then sought reappointment to the position as Stark County sheriff and was successful. His current appointment to the office of sheriff began on December 12, 2013. His current tenure in that position has not been challenged.

Maier's application for candidacy is protested by Balas–Bratton

{¶ 8} So that he may run for sheriff in the 2014 general election, Maier submitted an application for candidacy with the BOE on January 28, 2014. On February 11, 2014, Balas–Bratton filed a protest with the BOE claiming that Maier failed to meet the statutory qualifications for a candidate for sheriff, specifically, R.C. 311.01(B)(8)(a) or (b) and (B)(9)(a) or (b). The protest sought to prevent Maier's name from appearing on the May 6, 2014 Democratic primary ballot.

Balas–Bratton asserts that board member St. John is biased

{¶ 9} Prior to the BOE hearing on the protest, Balas–Bratton sent correspondence to the BOE and Husted requesting that BOE member Deametrious St. John recuse himself from participating in the protest hearing or be prevented from participating in the protest hearing. Balas–Bratton alleges that she claimed in her correspondence that St. John could not be fair and impartial because he had previously voted to appoint Maier as sheriff, had signed a letter supporting the appointment of Maier for sheriff in February 2013, and had made statements to a newspaper reporter indicating that he believed that Maier met the qualifications.

{¶ 10} On February 14, 2014, BOE member St. John executed an affidavit that he submitted to the BOE attesting that he could be fair and impartial at the protest hearing.

{¶ 11} One day before the protest hearing was scheduled to take place, Balas–Bratton filed an action in prohibition and mandamus against the BOE in the Fifth District Court of Appeals to prevent St. John's participation in the protest hearing. That court did not issue a writ before the hearing. After the hearing, the court of appeals dismissed the action as moot. That dismissal is currently on appeal to this court. State ex rel. Balas–Bratton v. St. John, case No. 2014–0367.

The BOE's hearing resulted in a tie vote

{¶ 12} On February 21, 2014, the BOE held a public hearing on the protest. After a day-long hearing in which four witnesses testified and were cross-examined, and the parties submitted 23 exhibits, the BOE voted on the protest. On the issue of Maier's qualifications under R.C. 311.01(B)(8), the BOE voted to deny the protest. However, as to Maier's qualifications under R.C. 311.01(B)(9), the BOE produced a tie vote, with the two Democrats, Ferrucio and St. John, voting to deny the protest and the two Republicans, Cline and Braden, voting to grant the protest.

The tie vote was broken by Husted

{¶ 13} The matter was referred to Husted to break the tie under R.C. 3501.11(X). On March 7, 2014, Husted issued his decision, voting to deny the protest. Husted found that R.C. 311.01(B)(9) “needs more clarity” and “is in need of rewriting in a manner that is unambiguous.” Nevertheless, he found that the record lacked evidence to demonstrate that Maier was unqualified under R.C. 311.01(B)(9). He therefore broke the BOE tie in favor of denying the protest.

{¶ 14} Balas–Bratton initiated this action in prohibition, requesting expedited review and an order precluding Husted and the BOE from including Maier on the May primary ballot.

Analysis

Prohibition

{¶ 15} To be entitled to the requested writ of prohibition, Balas–Bratton must establish that (1) a lower tribunal is about to or has exercised judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18 and 23; State ex rel. Miller v. Warren Cty. Bd. of Elections, 130 Ohio St.3d 24, 2011-Ohio-4623, 955 N.E.2d 379, ¶ 12.

{¶ 16} Moreover, “[i]n extraordinary-writ actions challenging a decision of the secretary of state, the standard is whether the secretary engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable law.” State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427, 2010-Ohio-1873, 928 N.E.2d 1072, ¶ 9. There is no evidence of fraud or corruption here, so the dispositive issue is whether Husted abused his discretion or clearly disregarded applicable law.

{¶ 17} Because Balas–Bratton cannot satisfy the elements of prohibition, we deny the writ.

Alleged bias of board member St. John

{¶ 18} Balas–Bratton first asks the court for a writ of prohibition directing Husted not to recognize St. John's vote against her protest. This claim is based on Balas–Bratton's assertion that St. John was biased in favor of Maier and against her protest. She bases this assertion on the grounds that St. John, as a member of the DCC, had twice voted to appoint Maier sheriff, both before and after his ouster; that he had signed a letter directed to fellow DCC members and supporting Maier; and that he had stated to a reporter that he had always believed that Maier met the qualifications.

{¶ 19} As explained above, prohibition requires that a tribunal be exercising or about to exercise judicial or quasi-judicial power. W...