State ex rel. Bender v. Franklin Cnty. Bd. of Elections
| Decision Date | 15 July 2019 |
| Docket Number | No. 2019-0767,2019-0767 |
| Citation | 132 N.E.3d 664,157 Ohio St.3d 120,2019 Ohio 2854 |
| Parties | The STATE EX REL. BENDER v. FRANKLIN COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
Mark R. Brown and Mark G. Kafantaris, Columbus, for relator.
Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Timothy A. Lecklider and Nick A. Soulas Jr., Assistant Prosecuting Attorneys, for respondent.
{¶ 1} Relator, Robert Bender, seeks a writ of mandamus ordering respondent, the Franklin County Board of Elections, to reinstate his certification to the November 2019 ballot as the Libertarian Party candidate for Reynoldsburg City Council, Ward 3. After initially certifying Bender to the ballot, the board sustained a protest challenging the validity of some of the signatures on Bender's petition. Because no evidence established that the protestor had standing to bring the protest and because it was too late for the board to remove Bender from the ballot sua sponte, we grant a writ of mandamus ordering the board to reinstate Bender as a candidate for the November 2019 general election.
{¶ 2} On February 6, 2019, Bender submitted his declaration of candidacy to be the Libertarian Party nominee for Reynoldsburg City Council, Ward 3. Bender's petition contained 22 signatures. The minimum number of valid signatures necessary for Bender to qualify for the ballot was 13. Jeffrey Mackey, the manager of petitions and campaign finance for the board, examined the signatures and determined that 13 of them were valid and that the petition therefore met the signature requirement. Because no other candidate sought the Libertarian nomination for the Ward 3 council seat, no primary election for that seat was necessary. See R.C. 3513.02. Accordingly, on February 19, the board certified Bender to the November 5, 2019 general-election ballot.
{¶ 3} On February 22, the board received a timely written protest from John H. Duus, who challenged the validity of six of the previously validated signatures on Bender's petition. On March 4, the board sent Bender a letter notifying him of Duus's protest and informing Bender that he would be notified again once a date for hearing the protest had been set. On May 9, two days after the primary election, the board notified Bender that it would hear Duus's protest at a meeting scheduled for May 28. On May 28, the board received a letter from Bender's attorney objecting to the hearing as untimely under R.C. 3501.39(B) and 3513.05.
{¶ 4} At the May 28 meeting, neither Duus nor any representative for Duus appeared. Bender's attorney addressed the board, arguing that it should dismiss the protest for lack of standing because Duus had presented no evidence that he was a member of the Libertarian Party. Bender's attorney also argued that the board had no authority to remove Bender from the ballot after the primary election. In light of the legal issues raised by Bender's attorney, the board continued the hearing to June 3.
{¶ 5} At its June 3 meeting, the board heard from Mackey and the board's attorney, who opined that neither the concern pertaining to standing nor the concern pertaining to timeliness prohibited the board from considering the merits of the protest. The board also heard from Bender's attorney, who noted the continued absence of Duus or any representative for Duus and presented rebuttal arguments on the issues of standing and timeliness. The board then considered the protest and examined the six signatures questioned in the protest letter, comparing them to the electors' signatures on file. Despite Mackey's statement at the May 28 hearing that all 13 validated signatures were "within the bounds of what we generally look for," at the subsequent June 3 hearing, the board determined that three of the challenged signatures did not match the signatures on file. Because this left Bender three signatures short of the required 13, the board sustained the protest and removed Bender from the November ballot.
{¶ 6} Bender filed this mandamus action on June 7, seeking a writ of mandamus ordering the board to again certify him as the Libertarian Party nominee for Reynoldsburg City Council, Ward 3, for the November 5, 2019 general election. We granted Bender's motion to expedite, 156 Ohio St.3d 1412, 2019-Ohio-2413, 124 N.E.3d 838, and the case has now been fully briefed.
{¶ 7} To be entitled to a writ of mandamus, a relator must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. Given the proximity of the November 2019 election, Bender does not have an adequate remedy in the ordinary course of the law. See , e.g. , State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections , 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18. When reviewing the decision of a county board of elections, the standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections , 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶ 29.
{¶ 8} There are two circumstances under which a board of elections may declare a candidate's petition invalid: in response to a written protest ( R.C. 3501.39(A)(1) and (2) ) or sua sponte ( R.C. 3501.39(A)(4) ). To invalidate a petition sua sponte, a board must act on or prior to the 60th day before the primary election—even if no primary is required. R.C. 3501.39(B) ; State ex rel. Yeager v. Richland Cty. Bd. of Elections , 136 Ohio St.3d 327, 2013-Ohio-3862, 995 N.E.2d 228, ¶ 22. That time limit does not apply to a board's action in response to a written protest. While the protest itself must be filed by 4 p.m. on the 74th day before the primary election, a board must only "promptly fix the time for hearing it." R.C. 3513.05, paragraph 13; see also State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections , 75 Ohio St.3d 44, 46, 661 N.E.2d 699 (1996). But another significant limitation does apply to written protests: only the controlling committee of a political party or a qualified elector who is a member of the same political party as the protested candidate and who is eligible to vote for the candidate in the primary election may protest a candidate's petition. R.C. 3513.05, paragraph 13.
{¶ 9} Because the board did not act until well after the 60th day before the primary election, it was not statutorily authorized to act sua sponte. See Harbarger at 46, 661 N.E.2d 699. The board claims to have acted in response to Duus's written protest. However, Duus's protest letter did not state that he was a member of the Libertarian Party, nor did he attach an affidavit to his letter, and the board had before it no affirmative evidence regarding Duus's party membership. Instead, the board found that Duus qualified as a member of the Libertarian Party based on his recent voting record, which showed that he had not voted in any party's primary election within the previous two calendar years. However, no evidence established that Duus identified as a member of the Libertarian party at the time he filed the protest. Thus, the board abused its discretion by removing Bender from the ballot based on Duus's protest.
{¶ 10} The board argues that its reliance on Duus's voting record comports with R.C. 3513.05, paragraph 7, which provides:
For purposes of signing or circulating a petition of candidacy for party nomination or election , an elector is considered to be a member of a political party if the elector voted in that party's primary election within the preceding two calendar years, or if the elector did not vote in any other party's primary election within the preceding two calendar years.
(Emphasis added.) The board acknowledges that paragraph 7 of R.C. 3513.05 specifically applies to petition signers and circulators and that it does not mention protestors. But the board contends that it would be illogical not to extend the provision to protestors. We disagree.
{¶ 11} The board's application of paragraph 7 of R.C. 3513.05 in this case operated as a presumption that permitted the board to make a necessary determination—that the protestor met a statutory standing requirement—in a quasi-judicial proceeding, without evidence to support that determination. An R.C. 3513.05 protest hearing is a quasi-judicial proceeding. State ex rel. Stewart v. Clinton Cty. Bd. of Elections , 124 Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 16 ; State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections , 80 Ohio St.3d 302, 306, 686 N.E.2d 238 (1997) (). And " ‘[q]uasi-judicial authority is the power to hear and determine controversies between the public and individuals that require a hearing resembling a judicial trial.’ " (Emphasis deleted.) State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections , 90 Ohio St.3d 238, 241, 736 N.E.2d 893 (2000), quoting State ex rel. Wright v. Ohio Bur. of Motor Vehicles , 87 Ohio St.3d 184, 186, 718 N.E.2d 908 (1999).
{¶ 12} "[I]rrebuttable presumptions" are disfavored when "the fact presumed is an essential constitutional or statutory predicate to government action." Granzow v. Montgomery Cty. Bur. of Support , 54 Ohio St.3d 35, 37, 560 N.E.2d 1307 (1990). More broadly, "[a] finding without evidence to support it is arbitrary and unlawful." Gen. Motors Corp. v. Baker , 92 Ohio App. 301, 309, 110 N.E.2d 12 (2d Dist.1952). In State ex rel. Beck v. Hummel , 150 Ohio St. 127, 80 N.E.2d 899 (1948), this court held that the...
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