State ex rel. Greene v. Montgomery Cty. Bd., 2009-0586.
| Court | United States State Supreme Court of Ohio |
| Writing for the Court | Per Curiam |
| Citation | 121 Ohio St.3d 631,907 N.E.2d 300,2009 Ohio 1716 |
| Parties | The STATE ex rel. GREENE, Appellant, v. MONTGOMERY COUNTY BOARD OF ELECTIONS et al., Appellees. |
| Docket Number | No. 2009-0586.,2009-0586. |
| Decision Date | 13 April 2009 |
v.
MONTGOMERY COUNTY BOARD OF ELECTIONS et al., Appellees.
[907 N.E.2d 301]
James R. Greene III, pro se.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Victor T. Whisman, Assistant Prosecuting Attorney, for appellees.
PER CURIAM.
{¶ 1} This is an appeal as of right from a judgment denying a writ of mandamus to compel the placement of the name of appellant, James R. Greene III, on the May 5, 2009 primary-election ballot for the office of mayor of the city of Dayton, Ohio. Because the court of appeals properly determined that Greene did not establish his entitlement to the writ, we affirm.
{¶ 2} On March 20, 2009, Greene filed a pro se complaint in the Court of Appeals for Montgomery County for a writ of mandamus to compel appellees, the Montgomery County Board of Elections, its members, its director, and its deputy director, to place his name on the May 5 primary-election ballot for mayor of Dayton. Greene is an attorney.
{¶ 3} In his verified complaint, Greene alleged the following. On March 6, Greene filed a petition with appellee Montgomery County Board of Elections to be a candidate for mayor. The petition was required to contain "at least 500 signatures of registered electors of the municipality." Section 7(A), Dayton Charter. On March 10, the board of elections determined that the petition contained only 398 valid signatures, and it thus refused to place Greene's name on the May 5 primary-election ballot.
{¶ 4} The board of elections struck 213 signatures from the petition. Greene alleged that the board of elections claimed to have invalidated these 213 signatures for the following reasons: 84 signatures because the persons were not qualified electors, 72 signatures because they did not meet certain board standards, and 57 signatures because the persons lived "out of the area." Greene alleged that 104 of these signatures were improperly invalidated on grounds not specified by the Dayton Charter.
{¶ 5} In a subsequent trial brief, Greene claimed that 110 of the signatures were improperly invalidated by the board of elections. In appellees' trial brief, they claimed that of the 213 signatures the board struck from Greene's petition, 84 were invalidated because the board could
not match the names to the names contained in the voter-registration records on file with the board, 72 were rejected because the signatures or other legal marks did not resemble the signatures or legal marks on the voter-registration records, and the remaining 57 signatures were invalidated because the addresses on the petitions did not match the addresses on the voter-registration cards and it was therefore impossible to verify that the signers were registered electors of Dayton. Appellees' brief was supported by an affidavit.
{¶ 6} On March 27, the court of appeals held an expedited evidentiary hearing on Greene's mandamus claim. The court of appeals denied the writ on the same day:
{¶ 7} "Upon due consideration of the facts adduced at the March 27, 2009 hearing, including testimony from Gregory Gantt, Chairman of the Montgomery County Board of Elections; Steven P. Harsman, Director of the Montgomery County Board of Elections; and Henderson Scott, Montgomery County Board of Elections employee, in addition to the arguments set forth in the parties' respective briefs, this Court does not find that Greene has demonstrated a sufficient basis to justify extraordinary relief. Specifically, Greene has failed to meet his burden of establishing that he has a clear legal right to his name being placed on the May 5, 2009 primary election ballot, and that Respondents have a clear legal duty to place his name on said ballot."
{¶ 8} On March 30, Greene filed a notice of appeal from the court of appeals' judgment as well as a motion for emergency relief and request for oral argument. On March 31, we ordered the immediate transmission of the court of appeals record and instructed the parties to file their merit briefs by April 8. We denied Greene's motion for emergency relief and request for oral argument.
{¶ 9} This cause is now before the court for our consideration of the merits of this appeal.
{¶ 10} To be entitled to the requested writ of mandamus, Greene must establish a clear legal right to certification of his candidacy and placement of his name on the May 5 election ballot,1 a corresponding clear legal duty on the part
of the board of elections and its members, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Grounds v. Hocking Cty. Bd. of Elections, 117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252, ¶ 10. Given the proximity of the election, Greene has established that he lacks an adequate remedy in the ordinary course of the law. State ex rel. Columbia Res. Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 28.
{¶ 11} For the remaining requirements, to establish the requisite legal right and legal duty, Greene "must prove that the board of elections engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or other pertinent law." Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 8. There is no evidence or claim of fraud or corruption here, so the dispositive issue is whether the board of
elections abused its discretion or clearly disregarded applicable law by determining that Greene's nominating petition did not contain the required number of valid signatures to require his placement on the May 5 primary-election ballot.
{¶ 12} Greene...
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