State ex rel. Cooker Restaurant Corp. v. Montgomery County Bd. of Elections, 97-2001

Citation686 N.E.2d 238,80 Ohio St.3d 302
Decision Date24 October 1997
Docket NumberNo. 97-2001,97-2001
PartiesThe STATE ex rel. COOKER RESTAURANT CORPORATION et al. v. MONTGOMERY COUNTY BOARD OF ELECTIONS et al.
CourtUnited States State Supreme Court of Ohio

Brunner, Brunner & Alexander Co., L.P.A., Rick L. Brunner and Lisa A. Atkins, Columbus; J. Richard Lumpe; Benesch, Friedlander, Coplan & Aronoff, L.L.P., N. Victor Goodman, James F. DeLeone and Mark D. Tucker, Columbus, for relator Cooker Restaurant Corporation.

Gary L. Jones Co., L.P.A., Gary L. Jones and James J. Andrioff, Columbus, for relator Brinker Ohio, Inc.

Boucher & Boucher and Richard A. Boucher, Dayton; and Don A. Little, Sidney, for relator Karen A. Meyer.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Victor T. Whisman, Assistant Prosecuting Attorney, for respondent Montgomery County Board of Elections.

McTigue & Brooks and Donald J. McTigue, Columbus, for respondent Sphere Investments, Ltd.

PER CURIAM.

Prohibition

In order to be entitled to the requested writ of prohibition, relators must establish that (1) the board is about to exercise judicial or quasi-judicial power, (2) the exercise of such power is not legally authorized, and (3) if the writ is denied, they will suffer injury for which no other adequate legal remedy exists. Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 36-37, 671 N.E.2d 1, 3. A board's exercise of judicial or quasi-judicial power is unauthorized if it engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 292, 649 N.E.2d 1205, 1208. Here, relators contend that the board abused its discretion and acted in clear disregard of applicable statutes and other law. An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude. State ex rel. Crabtree v. Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, 1283.

With the foregoing standards in mind, relators' claims are next addressed.

Cooker Protest: Unauthorized Practice of Law

Relators contend that the board of elections abused its discretion and acted in clear disregard of applicable law by dismissing Cooker's protest because it had been submitted by Young, a nonattorney, on behalf of Cooker.

The last paragraph of R.C. 4301.33(B) provides the following protest procedure for local option petitions concerning the sale of wine, mixed beverages, spirituous liquor, and intoxicating liquor:

"Protest against local option petitions may be filed by any elector eligible to vote on the question or questions described in the petitions or by a permit holder in the precinct or residence district as described in the petitions, not later than four p.m. of the sixty-fourth day before the day of the general or primary election for which the petition qualified. The protest shall be in writing and shall be filed with the election officials with whom the petition was filed. Upon filing of the protest, the election officials with whom it is filed shall promptly fix the time for hearing it, and shall mail notice of the filing of the protest and the time and place for hearing it to the person who filed the petition and to the person who filed the protest. At the time and place fixed, the election officials shall hear the protest and determine the validity of the petition."

R.C. 4305.14(D) provides a similar protest procedure for local option petitions on the sale of beer:

"Protest against a local option petition may be filed by any qualified elector eligible to vote on the question or questions specified in the petition or by a permit holder in the precinct or residence district as described in the petition, not later than four p.m. of the sixty-fourth day before the day of such general or primary election. Such protest must be in writing and shall be filed with the election officials with whom the petition was filed. Upon filing of such protest the election officials with whom it is filed shall promptly fix the time for hearing the same, and shall forthwith mail notice of the filing of the protest and the time for hearing it to the person who filed the petition which is protested and to the person who filed the protest. At the time fixed, the election officials shall hear the protest and determine the validity of the petition."

In Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932, syllabus, we held that "[t]he preparation and filing of a complaint with a board of revision on behalf of a taxpayer constitute the practice of law." See, also, Gammarino v. Hamilton Cty. Bd. of Revision (1997), 80 Ohio St.3d 32, 684 N.E.2d 309. In so holding, we relied on several factors, including that (1) the board of revision is a quasi-judicial body, (2) in order to invoke its jurisdiction, it is necessary to file a verified complaint, (3) the board must give notice to property owners and boards of education when a complaint is filed by other parties, and (4) preparation and filing of the complaint contained statutorily defined jurisdictional requirements that, if not properly met, barred the rights of owners to contest their valuations. Sharon Village, 78 Ohio St.3d at 481-482, 678 N.E.2d at 934-935.

For the reasons that follow, the board did not abuse its discretion or clearly disregard applicable law by dismissing Cooker's protest because it was not submitted by an attorney. First, a board of elections, like a board of revision, is a quasi-judicial body when it considers protests. See State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections (1996), 75 Ohio St.3d 44, 45, 661 N.E.2d 699, 700, citing Thurn, 72 Ohio St.3d at 291, 649 N.E.2d at 1207 ("A protest hearing in election matters is a quasi-judicial proceeding."). Second, in order to invoke the board's statutory authority to consider protests to local liquor option petitions under R.C. 4301.33(B) and 4305.14(D), it is necessary to file a protest. Third, the board must give notice to the petitioner of the filing of a protest, fix a time for hearing it, and notify the petitioner and protestor of the time and place for the hearing. R.C. 4301.33 and 4305.14(D). Fourth, if the protestor does not properly meet the requirements for filing a protest, e.g., time or specificity, it may bar the protestor's rights to contest the petitions. See R.C. 4301.33, 4305.14(D), and 3501.39(A)(1).

Therefore, based on Sharon Village, the preparation and filing of a statutory protest with a board of elections constitute the practice of law. See R.C. 4705.01. Young submitted a protest, gave professional advice to his client, and appeared at the September 9 protest hearing before the board on Cooker's behalf, presenting argument and evidence, and conducting direct examination of witnesses. See Cincinnati Bar Assn. v. Estep (1995), 74 Ohio St.3d 172, 657 N.E.2d 499. The board of elections thus properly dismissed Cooker's protest because it was not properly filed by an attorney. Relators' reliance on Jemo Assoc., Inc. v. Lindley (1980), 64 Ohio St.2d 365, 18 O.O.3d 518, 415 N.E.2d 292, is unavailing because, as noted in Sharon Village, 78 Ohio St.3d at 483, 678 N.E.2d at 935, we did not consider the issue in Jemo because it was irrelevant. This issue, however, is not irrelevant here.

Finally, any argument that Young relied on the advice of the board in determining that it was permissible for a nonattorney to file a protest is likewise meritless. Sphere introduced evidence that the board did not advise Young whether he had to be an attorney to file a protest on behalf of someone else. Furthermore, any mistaken advice by the board of elections did not estop it from invalidating the protest submitted by Young. See State ex rel. Chevalier v. Brown (1985), 17 Ohio St.3d 61, 63, 17 OBR 64, 66, 477 N.E.2d 623, 625, quoting Besl Corp. v. Pub. Util. Comm. (1976), 45 Ohio St.2d 146, 150, 74 O.O.2d 262, 265, 341 N.E.2d 835, 838 (" '[T]he principle of estoppel does not apply against a state or its state agencies in the exercise of a governmental function.' "); State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio St.3d 186, 189, 602 N.E.2d 631, 633.

Meyer Protest: Specificity

Relators contend that the board abused its discretion and acted in clear disregard of applicable law by not invalidating the petitions because (1) Precincts Q and W are not a "residence district" as defined in R.C. 4301.01(B)(19), since they are not contiguous, and (2) Sphere did not attach an original R.C. 4305.14(B) affidavit to its beer option petition. Meyer, however, did not raise either of these specific objections in her written protest. The board prevented Meyer from introducing evidence relating to objections she had not raised in her protest.

R.C. 3501.39(A)(1) provides that a board of elections shall accept any petition unless a "written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition is invalid, in accordance with any section of the Revised Code providing a protest procedure." (Emphasis added.) R.C. 3501.39(A)(1) thereby incorporates the liquor option protest procedures of R.C. 4301.33 and 4305.14(D). See Harbarger, 75 Ohio St.3d at 46, 661 N.E.2d at 700; State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 585, 651 N.E.2d 995, 998 ("All statutes relating to the same general subject matter must be read in pari materia, and in construing these statutes in pari materia, this court must give them a reasonable construction so as to give proper force and effect to each and all of the statutes.").

R.C. 3501.39(A)(1) required Meyer to specify her objections in her protest. One of the evident purposes of this requirement is to give notice to the petitioner and the...

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