State ex rel. Klein v. Cuyahoga Cty. Bd. of Elections

• Decision Date: 01 May 1995
• Docket Number: No. 68223,68223
• Citation: 102 Ohio App.3d 124,656 N.E.2d 1031
• Parties: The STATE ex rel. KLEIN v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Court of Appeals

Page 124

102 Ohio App.3d 124

656 N.E.2d 1031

The STATE ex rel. KLEIN v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al.

No. 68223.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided May 1, 1995.

McTigue & Brooks and Donald J. McTigue, Columbus; and William Michael O'Neill, Chardon, for relator.

Michael P. Butler and Patrick J. Murphy, Assistant Cuyahoga County Prosecuting Attorneys, Cleveland, for respondents Cuyahoga County Board of Elections, Jimmy Dimora, Marguerite S. Hughes, Roger M. Synenberg, and Ann White.

NAHRA, Judge.

On December 5, 1994, the relator, Jay Klein, commenced this prohibition and mandamus action against the respondents, the Cuyahoga County Board of Elections, Jimmy Dimora, Ann White, Roger Synenberg and Marguerite Hughes, to compel them to oust Michael Corrigan as a judge of the Cuyahoga County Common Pleas Court. Subsequently, Klein admitted that the prohibition action was moot; thus, it is dismissed and the application for an alternative writ of prohibition filed therewith is denied. The parties have submitted the mandamus action on cross-motions for summary judgment. For the following reasons, the court denies the application for a writ of mandamus.

The parties agree that in 1992 and 1993 Michael Corrigan was a member of the Democratic Party and voted the Democratic primary election ballot. In January 1994, he filed his declaration of candidacy for common pleas judge in the May 3, 1994 Democratic primary. On March 9, 1994, the board of elections approved the validity and sufficiency of Judge Corrigan's petition and certified his name on the ballot. No one filed a protest to his candidacy, and no one suggests that as of that date judge Corrigan was not properly certified as a Democratic candidate. Moreover, Judge Corrigan was unopposed for that particular judgeship.

On April 5, 1994, the absentee balloting began. On primary election day, May 3, Corrigan voted the Republican Party primary ballot, as established by the public records relating to the election. No one challenged Corrigan's vote. On June 7 the board of elections certified the results of the primary election and declared Corrigan the victor in the Democratic primary for that particular judgeship. In the November 8, 1994, nonpartisan general election, Corrigan was unopposed. Again no one, including Klein, protested his candidacy in any way. On or about November 16, 1994, Klein read a newspaper article in which Corrigan discussed his change from Democrat to Republican; the article stated his reasons were philosophical.

Approximately three weeks later Klein filed this writ action. He asserts that he is a member of the Cuyahoga County Democratic Party Central and Executive Committees and a ward leader for Lyndhurst, that he supported and worked for Judge Corrigan's candidacy, and that he voted for him at the May 3, 1994 primary. Klein further alleges that had he known that Corrigan would change parties, he would not have supported or voted for him. On December 6, 1994, the board of elections certified the election results, including Corrigan's victory.

The gravamen of Klein's argument is that Corrigan violated R.C. 3513.191 by declaring himself a Democratic candidate for the primary and then voting Republican in the same primary. That statute provides: "No person shall be a candidate for nomination or election at a party primary if he voted as a member of a different political party at any primary election within the current year and the next preceding two calendar years." Klein seizes upon the language "in the current year" and deduces that because Corrigan voted Republican in the May 3, 1994 primary, he disqualified himself as a Democratic candidate, even though he had already properly qualified as a candidate.

As a mechanism to decertify Corrigan's election, Klein relies upon R.C. 3513.22, which provides in part: "If, after certifying and sending abstracts and parts thereof, a board finds that any such abstract or part thereof is incorrect, it shall promptly prepare, certify, and send a corrected abstract or part thereof to take the place of each incorrect abstract or part thereof theretofore certified and sent." He argues, without any case authority, that this section allows a board of elections retroactively and without protest or hearing to test the eligibility and qualifications of a candidate after an election and, if appropriate, decertify him as the winner and effectively oust him from office.

Klein's application for a writ of mandamus fails on the merits. The requirements for mandamus are well established: (1) the relator must have a clear legal right to the relief requested, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914; State ex rel. Taylor v. Lucas Cty. Bd. of Elections (1988), 43 Ohio App.3d 176, 540 N.E.2d 292. A board of elections has no duty to apply R.C. 3513.191 in a retroactive fashion to decertify a candidate, whom the board properly declared eligible, and in effect to disfranchise the electors who voted for that candidate.

First, Klein has not cited, nor has this court found, any controlling or persuasive authority for the specific proposition that a board of elections must decertify or rule as ineligible a candidate who properly qualified as a candidate for one party and then voted as a member of another party at the relevant election.

The focus of R.C. 3513.191 is on the prerequisites to be a candidate for nomination or election at a party primary. The right to be a candidate must necessarily be established before the primary. The use of the word candidate, rather than the phrase no person shall be elected to office, reveals that the scope of this statute is limited to qualifying a person before the primary. The need for certainty and finality in election matters requires that the outcome of an election, including a primary election, not be overturned or thwarted by events subsequent to the point when candidates have been established as eligible for the ballot. Accordingly, the latter qualifying phrases in R.C. 3513.191 must have their effect prior to the relevant primary.

An analysis of R.C. Chapter 3513, especially the timing allotted for protests, verifies the above principle. The vehicle for challenging a candidate's qualifications is the statutorily provided protest under R.C. 3513.05, which governs various primary procedures, including protests. A candidate's qualifications are not tested by an election contest, the certification process under R.C. 3513.22 or some other means. The Supreme Court of Ohio clarified this point of law in Portis v. Summit Cty. Bd. of Elections (1993), 67 Ohio St.3d 590, 621 N.E.2d 1202, in which it rejected the proposition that an election contest could be used to submit an untimely protest. The court unequivocally ruled that a candidate's qualifications are tested via the protest.

Under R.C. Chapter 3513 the time specified for making a protest to a person's candidacy is up to sixty-four days before the primary. R.C. 3513.05. After that time the board of elections has no duty to consider protests. In Pierce v. Brushart (1950), 153 Ohio St. 372, 378, 92 N.E.2d 4, 7, the Supreme Court of Ohio held that when "a protest is not filed with the board of elections before the required day prior to the election, it is too late to be effective and the board of elections may disregard it * * *." See, also, State ex rel. Cassidy v. Zaller (1943), 142 Ohio St. 186, 27 O.O. 27, 50 N.E.2d 991. Similarly, R.C. 3513.262 and 3513.263 limit the time specified for protesting candidates who use nominating petitions for the general election. The...