State ex rel. Brady v. Blackwell
| Decision Date | 20 October 2006 |
| Docket Number | No. 88827.,88827. |
| Citation | 2006 Ohio 5615,862 N.E.2d 858,169 Ohio App.3d 301 |
| Parties | The STATE of Ohio ex rel. BRADY v. BLACKWELL, Secy. of State, et al. |
| Court | Ohio Court of Appeals |
{¶ 1} On October 5, 2006, relator, Jennifer Brady, commenced a mandamus action against Secretary of State J. Kenneth Blackwell, the Cuyahoga County Board of Elections, and the individual members of the board. In her petition, Brady asks this court to grant the writ and order respondents to place or keep her name on the November 7, 2006 general-election ballot. Thereafter, pursuant to this court's order, respondents filed a motion to dismiss, and relator filed the transcript from the board hearing. Relator also moved to amend her writ request to allege alternative relief in prohibition, and further filed an untimely response to respondents' motion to dismiss. On October 12, 2006, respondents filed a memorandum in response to the motion for leave to amend the complaint.
{¶ 2} The underlying facts of this matter are as follows: On May 2, 2006, Michael J. O'Shea filed as a write-in candidate for the Democratic primary for the office of state representative for the 16th Ohio House District. Having garnered a sufficient number of write-in votes, O'Shea became the Democratic candidate for the district. Thereafter, O'Shea withdrew as the nominee, and on June 27, 2006, precinct committee members from the district conducted a meeting pursuant to R.C. 3513.31(D) and selected relator Jennifer Brady as O'Shea's replacement.
{¶ 3} On July 12, 2006, A. Steven Dever, the chairperson of the meeting, sent a letter to the Cuyahoga County Democratic Party chairman, Jimmy Dimora, that stated that he served as chairman of a special meeting called by the Cuyahoga Democratic Party where a majority of the central committee members for the district met for the purpose of selecting a replacement candidate for Micheal O'Shea. Dever's letter also stated that there was a quorum present from each of the cities in the district and for the district as a whole and that Jennifer Brady was nominated and unanimously chosen as the replacement candidate. Dever's letter, however, was not notarized. The letter also failed to include a notarized signature from the recording secretary from the meeting and a letter of acceptance from Jennifer Brady.
{¶ 4} Once Dimora received Dever's letter, he immediately forwarded it to the board on July 14, 2006, and recommended that Jennifer Brady be placed on the November ballot. Dimora's letter also requested that the board contact his office "if there [were] any additional steps necessary to finalize this change." Thereafter, on August 22, 2006, the board received a letter from Brady that included her acceptance as the Democratic candidate for the office of state representative for the district. Brady's letter also specifically requested that the board contact her if any additional information was needed.
{¶ 5} On August 23, 2006, the board received a second letter from Dimora and Karen Pianka, who was identified as the recording secretary for the Cuyahoga County Democratic Party. The letter contained the same language as Dimora's letter of July 14, 2006, but also included a copy of Dever's July 12, 2006 letter and a copy of Brady's letter of acceptance. Additionally, on the bottom of Dimora's letter, was a notarial stamp of Katrina Dillard, as well as her notarial seal. However, the letter did not contain a jurat. The second letter to the board again requested that the board notify the chairman if there were any additional steps needed to finalize this process. The board received three timely requests regarding instructions as to what was required for a replacement candidate, and all requests were unanswered. On August 7, 2006, the board accepted and certified Jennifer Brady as the Democratic candidate for the office of state representative for the 16th House District.
{¶ 6} On September 1, 2006, and then on September 6, 2006, the board received protests to Brady's candidacy. The challenges were that the letter from the district committee chairman was not certified and it did not include a signed letter of acceptance from Brady. It should be noted that Jennifer Brady's signed letter of acceptance was received by the board within the necessary time required. Thereafter, on September 14, 2006, Dever signed an affidavit stating that he had sent a letter to Dimora dated July 12, 2006, that he had reviewed that letter, and that the contents of the letter were all true and accurate.
{¶ 7} On September 15, 2006, the board held a hearing to determine the protests. While no evidence was taken at the hearing, each side presented arguments. After arguments, and despite a written opinion by the board's legal counsel recommending that the protests be rejected, the board was deadlocked on the motion. Pursuant to R.C. 3501.11(X), the board properly forwarded the matter to the secretary of state to break the tie.
{¶ 8} On October 3, 2006, Assistant Secretary of State Monty Lobb broke the tie and voted with the board members in opposition against the motion to reject the protests against Brady's candidacy. For the following reason, we grant the relator's request for relief in prohibition.
{¶ 9} In order to be entitled to a writ of prohibition, Brady must establish that (1) the board of elections is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582.
{¶ 10} Although the decision by the secretary of state is not subject to appeal, it, like a decision from the board of elections, is subject to review in extraordinary actions to determine whether the secretary of state engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 598 N.E.2d 1149; State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152.
{¶ 11} In this matter, the vote on the motion to reject the protest before the board resulted in a tie. According to R.C. 3501.11(X):
In all cases of a tie vote or disagreement in the board, if no decision can be arrived at, the director or chairperson shall submit the matter in controversy, not later than fourteen days after the tie vote or disagreement, to the secretary of state, who shall summarily decide the question, and the secretary of state's decision shall be final.
{¶ 12} While the board did forward the matter to the secretary of state, an assistant secretary of state made the final decision to reject the motion. R.C. 111.04 allows for an assistant secretary of state to perform the duties of the secretary of state when the secretary of state is either absent or disabled. However, the duties that an assistant secretary of state can exercise are...
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