State ex rel. Democratic Executive Committee of Lucas County v. Brown
| Decision Date | 17 July 1974 |
| Docket Number | 74-147,Nos. 74-145,s. 74-145 |
| Citation | 68 O.O.2d 100,39 Ohio St.2d 157,314 N.E.2d 376 |
| Parties | , 68 O.O.2d 100 The STATE ex rel. DEMOCRATIC EXECUTIVE COMMITTEE OF LUCAS COUNTY v. BROWN, Secretary of State. The STATE ex rel. DEMOCRATIC EXECUTIVE COMMITTEE OF COLUMBIANA COUNTY v. BROWN, Secretary of State. |
| Court | Ohio Supreme Court |
The respondent, Ted W. Brown, refused to follow the relators' recommendations as to appointments to the two boards of elections, stating in writing, pursuant to R.C. 3501.07, his reasons for believing that the recommended candidates would not be competent members of the boards of elections.
Since both cases involve a common question of law under R.C. 3501.07, we have consolidated these two cases, Nos. 74-145 and 74-147, for decision.
William J. Kraus, Cleveland, for relators.
William J. Brown, Atty. Gen. and Thomas V. Martin, Asst. Atty. Gen., for respondent.
R.C. 3501.07 reads as follows:
Citing the Fourteenth Amendment to the United States Constitution and Section 38 of Article II of the Ohio Constitution, relators argue that R.C. 3501.07 cannot vest sole and arbitrary discretion in the Secretary of State to determine competency of recommended members of the board of elections without also providing procedural guarantees of due process. We disagree.
In two recent decisions, Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, the United States Supreme Court set forth standards for determining when a public employee's right to reemployment is protected by the Fourteenth Amendment's guarantees of due process.
In Roth, the court determined that the Fourteenth Amendment guarantees protected a public employee's interest in liberty and property. The court held that a nontenured professor at a state university was not entitled to notice and a hearing under the Fourteenth Amendment because:
(1) No stigma or disability attached to the failure to rehire which would foreclose the professor's liberty to seek other employment, and;
(2) The professor's contract of employment was limited to a period of one year, after the expiration of which, no contract or property right existed which was entitled to Fourteenth Amendment protection.
The court did state that, where there was admittedly no right to employment, the government could not, however, make a determination not to rehire for a constitutionally impermissible reason.
More importantly to the case at bar, Chief Justice Burger, in his conceurring opinions in both Roth and Sindermann stated that only when a right to reemployment under state law exists, arising from an express or implied contract, will the Fourteenth Amendment protect that right.
In the present case, no statutory right to appointment exists under R.C. 3501.07 prior to approval by the Secretary of State. We see no stigma or disability attaching to the exercise of statutory discretion by the Secretary of State in failing to appoint the recommended electors which would foreclose their seeking any other elective or appointive position.
Additionally, R.C. 3501.07 does not conflict with Section 38 of Article II of the Ohio Constitution. That section requires a formal complaint and a hearing only in cases involving removal of state officers for cause.
R.C. 3501.07 grants discretion to the Secretary of State as the appointing authority and does not operate to effect the removal of a public officer. Relators have not demonstrated that the provisions of R.C. 3501.07 conflict with or are prohibited by any constitutional provision.
On the merits of respondent's refusal to appoint them to the boards of elections, relators contend that mandamus is the proper remedy to correct an abuse of discretion by the Secretary of State under R.C. 3501.07 and that respondent's reasons for refusing to appoint them are not supported by any credible evidence and are of no substance.
R.C. 3501.07 grants the respondent Secretary of State broad discretion in determining whether recommended appointees are competent to be members of boards of elections. The statute requires only that he submit his reasons for believing that the candidate would not be competent, in writing, to the county executive committee recommending him. The statute also specifies that in a mandamus proceeding before this court the burden of proving the qualifications of the candidate so recommended is upon the county executive committee.
The general rule in regard to the issuance of a writ of mandamus to appointing authorities is that such authorities, vested with the power of appointment to office, are generally entitled to exercise judgment and discretion in the matter, and where that is the case courts in mandamus actions will only compel the appointing board or officer to proceed to exercise the power of appointment, and will not allow a writ of mandamus to control or override the decision made. 52 American Jurisprudence 2d 604, Mandamus, Section 275. Cf. Keim v. United States (1900), 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774.
In State ex rel. Derwort v. Hummel (1946), 146 Ohio St. 653, 67 N.E.2d 540, this court held that Section 4785-9, General Code (), authorizing the Secretary of State to determine whether a person recommended for appointment as a member of the board of elections is a qualified elector and will be a competent member of such board, clothes the Secretary of State with quasi-judicial power when exercising discretion in such matter. The court, at page 653, 67 N.E.2d at page 542, stated:
We think that the statute clearly empowers the Secretary of State to exercise his discretion in determining the qualifications and competency of persons recommended for appointment.
Prior to the enactment of R.C. 3501.07 and its predecessor, Section 4785-9, General Code, in 1929, this court had held that it was incumbent upon the Secretary of State to appoint recommended electors, unless the Secretary of State established by clear and convincing evidence that such recommended persons were disqualified to hold office. State ex rel. Culbert v. Kinney (1900), 63 Ohio St. 304, 58 N.E. 809; State ex rel. Brower v. Graves (1913), 89 Ohio St. 24, 104 N.E. 999; State ex rel. Kauffmann v. Brown (1924), 111 Ohio St. 289, 145 N.E. 329; State ex rel. Nolan v. Brown (1925), 113 Ohio St. 386, 149 N.E. 192; State ex rel. Nolan v. Brown (1926), 115 Ohio St. 1, 152 N.E. 22.
The enactment of Section 4785-9, General Code, and subsequently R.C. 3501.07, shifted the burden of proof of qualification in a mandamus action to those persons seeking the appointment.
This enactment, we believe, conforms to the general rule in mandamus actions that the writ will not issue to control the discretion of a public official vested with the power of appointment but may be invoked to remedy an abuse of such discretion. State ex rel. Coen v. Indus. Comm. (1933), 126 Ohio St. 550, 186 N.E. 398; State ex rel. Wilms v. Blake (1945), 144 Ohio St. 619, 60 N.E.2d 308; State ex rel. Great Lakes College v. Medical Bd. (1972), 29 Ohio St.2d 198, 280 N.E.2d 900.
An abuse of discretion in such a case must be more than an error of law of an error of judgment. It means discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. State ex rel. Wilms v. Blake, supra, 144 Ohio St. at page 624, 60 N.E. 308.
As this court stated, in State ex rel. Armstrong v. Davey (1935), 130 Ohio St. 160, 163, 198 N.E. 180, 181, a case involving the discretion of the Governor in setting the date for a special election, that:
"Before the judiciary will interfere in such a case, it must clearly appear that such officer has so far departed from the line of his duty under the law that it can be said he has in fact so far abused such discretion that he has neglected or refused to exercise any discretion."
In the present case, the record indicates that the Secretary of State refused to appoint William F. .boyle to the Board of Elections of Lucas County, in case No. 74-145, and refused to appoint Don R. Gosney to the Board of Elections of Columbiana County, in case No. 74-147.
In case No. 74-145, the Secretary of State stated his reason for not appointing Mr. Boyle in a letter to the Lucas County Democratic Executive Committee, dated February 1, 1974. In relevant part, it states:
'The competence of a board member depends not only on his knowledge of the election law and the mechanics of its...
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