State ex rel. Combs v. Greene Cnty. Bd. of Elections, 2019-1234
| Decision Date | 04 October 2019 |
| Docket Number | No. 2019-1234,2019-1234 |
| Citation | 140 N.E.3d 555,2019 Ohio 4110,158 Ohio St.3d 70 |
| Parties | The STATE EX REL. COMBS v. GREENE COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
Isaac, Wiles, Burkholder & Teetor, L.L.C., Donald C. Brey, Mark R. Weaver, and Matthew R. Aumann, Columbus, for relator.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A. Ellis, Assistant Prosecuting Attorney, for respondent.
{¶ 1} Relator, L. Stephen Combs, seeks a writ of mandamus ordering respondent, the Greene County Board of Elections, to count the signatures on his petition and certify his name to the November 5, 2019 general-election ballot as a candidate for Xenia Township Trustee. We deny the writ.
{¶ 2} Combs submitted his nominating petition on August 6, 2019. It consisted of three part-petitions. The first had 13 signatures, the second had 11 signatures, and the third had 20 signatures. At the bottom of each part-petition, Combs signed a declaration, "under penalty of election falsification," that included the statement, "I am the circulator of the foregoing petition containing 44 signatures."
{¶ 3} At its August 19 meeting, the board rejected Combs's petition because the circulator statement on each part-petition indicated 44 signatures—the total number on the entire petition—rather than the number of signatures on the individual part-petition. Because it rejected the petition on this basis, the board did not complete its verification of the signatures.
{¶ 4} Combs requested an expedited reconsideration hearing. In an affidavit, Combs avers that he received no notice of a hearing but that an unnamed representative of the board told him on September 3 that the expedited hearing had already taken place and that his petition had been denied. The board denies that a hearing occurred. The minutes of its August 27 meeting reflect that the board was informed of Combs's reconsideration request, that the board's legal counsel advised that it could hold a hearing but was not required to, that the board chair observed that it had not been the board's practice to hold reconsideration hearings in such circumstances, and that the topic died for lack of a motion. The board's deputy director avers in an affidavit that the minutes are accurate and that no hearing on Combs's request for reconsideration took place.
{¶ 5} On September 6, Combs filed his complaint seeking a writ of mandamus ordering the board to verify the signatures on his petition and to certify his name to the November 5 ballot.
{¶ 6} Combs is entitled to a writ of mandamus if he establishes by clear and convincing evidence that (1) he has a clear legal right to have his petition signatures verified and, if they are sufficient, have his name placed on the ballot, (2) the board has a clear legal duty to verify the signatures and place his name on the ballot, and (3) he lacks an adequate remedy in the ordinary course of the law. State ex rel. Davis v. Summit Cty. Bd. of Elections , 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 12. Because of the proximity of the election, Combs lacks an adequate remedy outside this proceeding. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections , 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18.
{¶ 7} Combs argues that he has a clear legal right to have his petition signatures verified and his name placed on the November ballot and that the board has a clear legal duty to verify the signatures and place his name on the ballot. We disagree.
{¶ 8} R.C. 3501.38(E)(1) provides, "On each petition paper , the circulator shall indicate the number of signatures contained on it * * *." (Emphasis added.) "Petition paper" means "part-petition," not the petition as a whole. Ohio Renal Assn. v. Kidney Dialysis Patient Protection Amendment Commt. , 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 24 (). And " R.C. 3501.38(E) demands strict compliance." State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections , 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, ¶ 49. Combs did not strictly comply with R.C. 3501.38(E)(1), because he did not, on each petition paper, indicate the number of signatures the petition paper contained.
{¶ 9} Combs raises two arguments regarding the interpretation of and strict compliance with R.C. 3501.38(E)(1). These arguments are without merit.
{¶ 10} Combs first argues that he actually complied with R.C. 3501.38, because the statute reads: "All * * * nominating petitions * * * shall * * * be governed by the following rules: * * * (E)(1) On each petition paper, the circulator shall indicate the number of signatures contained on it." Combs posits that by "it," the statute means the nominating petition.
{¶ 11} The interpretation Combs seeks is contrary to a plain reading of the statute. To accept Combs's reading would require that we set aside the ordinary rules of grammar and apply the singular "it" to the plural "nominating petitions" and overlook the proximate phrase "each petition paper" in favor of the phrase "nominating petitions," which appears at the very start of R.C. 3501.38. The construction he advocates is also at odds with other parts of the statutory scheme. There is no statutory requirement that a petition be circulated by a single circulator, and it is common for more than one person to circulate the separate parts of a petition. Requiring each of those individual circulators to state the total number of signatures on the entire petition, including signatures that the circulator did not witness, would be inconsistent with the form of the circulator statement set forth in R.C. 3513.261. And it would be counter to the state's interest in deterring and preventing fraud, see State ex rel. Linnabary v. Husted , 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 31.
{¶ 12} Combs also argues that only substantial, not strict, compliance with R.C. 3501.38(E)(1) is required, citing R.C. 3513.261. But R.C. 3513.261 merely provides that a nominating petition must be substantially in the form provided in the statute; it does not change the fact that candidates are required to strictly comply with R.C. 3501.38(E)(1). State ex rel. Simonetti v. Summit Cty. Bd. of Elections , 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 26 ().
{¶ 13} Combs argues that he has a clear legal right to relief because, he claims, he complied with the secretary of state's Form No. 3-R, which is a form created by the secretary that may be circulated to obtain electors' signatures for a candidate for township office. Form No. 3-R contains a statement requiring the circulator to declare, under penalty of election falsification:
I am the circulator of the foregoing petition containing [number of] signatures; * * * I witnessed the affixing of every signature; * * * all signers were to the best of my knowledge and belief qualified to sign; and * * * every signature is to the best of my knowledge and belief the signature of the person whose signature it purports to be * * *.
Citing State ex rel. Crowl v. Delaware Cty. Bd. of Elections , 144 Ohio St.3d 346, 2015-Ohio-4097, 43 N.E.3d 406, ¶ 10, Combs argues that because this declaration uses the word petition —not part-petition or petition paper —the secretary of state has interpreted R.C. 3501.38(E)(1) to require the circulator to state the number of signatures on the full petition, not the number on the part-petition, and that we should defer to the secretary's interpretation.
{¶ 14} As explained above, however, Combs's interpretation would not make sense in any situation in which there is more than one circulator: each individual circulator would be unable to make the required declaration because he would not have witnessed the signatures on the part-petitions that he did not circulate. In addition, Combs overlooks the fact that Form No. 3-R's declaration refers to the number of signatures on the foregoing petition. Combs's three declarations—coming at the end of his three part-petitions—cannot all logically refer to 44 foregoing signatures. It is therefore unlikely that the secretary has interpreted R.C. 3501.38(E)(1) as Combs suggests. Moreover, "when an election law is clear, ‘the settled rule is that [it is] mandatory and require[s] strict compliance.’ " (Brackets sic.) Ohio Renal Assn. , 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, at ¶ 8, quoting State ex rel. Phillips v. Lorain Cty. Bd. of Elections , 93 Ohio St.3d 535, 539, 757 N.E.2d 319 (2001). Since R.C. 3501.38(E)(1) is clear, no interpretation is warranted, and the question of deference is moot. The secretary lacks the authority to change the statute's requirements.
{¶ 15} Combs next argues that he has a clear legal right to relief because he committed no fraud, citing Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act , 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399, ¶ 44 (" OMA "). In OMA , we noted that "[t]he requirement that a circulator state the number of signatures personally witnessed ‘is a protection against signatures being added later.’ " Id. , quoting State ex rel. Loss v. Lucas Cty. Bd. of Elections , 29 Ohio St.2d 233, 234, 281 N.E.2d 186 (1972) (). We then stated, ...
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