State ex rel. Leneghan v. Husted

• Decision Date: 23 August 2018
• Docket Number: No. 2018-0866,2018-0866
• Parties: The STATE EX REL. LENEGHAN et al. v. HUSTED, Secy., et al.
• Court: Ohio Supreme Court

154 Ohio St.3d 60

110 N.E.3d 1275

2018 Ohio 3361

The STATE EX REL. LENEGHAN et al.

v.HUSTED, Secy., et al.

No. 2018-0866

Supreme Court of Ohio.

Submitted August 15, 2018

Decided August 23, 2018

Peggy S. Guzzo, Dublin, for relators.

Michael DeWine, Attorney General, and Halli Brownfield Watson, Renata Y. Staff, and Sarah E. Pierce, Assistant Attorneys General, for respondent Ohio Secretary of State Jon Husted.

Isaac, Wiles, Burholder & Teetor, L.L.C., Mark H. Troutman, and Shawn K. Judge, Columbus, for respondent Muskingum County Board of Elections.

Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Timothy A. Lecklider, Assistant Prosecuting Attorney, for respondent Franklin County Board of Elections.

Baker & Hostetler, L.L.P., Patrick T. Lewis, Cleveland, and Erika Dackin Prouty, Columbus, for proposed intervening respondent, Troy Balderson.

Per Curiam.

{¶ 1} Relator Melanie Leneghan was a candidate in the May 8, 2018 primary election for the Republican Party nomination for United States Representative for the 12th Congressional District.¹ Leneghan and her co-relator, Kay Clymer,² allege that improprieties occurred during the recount of votes in 16 Muskingum County precincts. They seek writs of mandamus compelling respondents, the Muskingum and Franklin County Boards of Elections and Ohio Secretary of State Jon Husted, to certify official election results that exclude all ballots cast in those 16 precincts.

{¶ 2} For the reasons set forth below, we deny the motion of the Muskingum County Board of Elections ("the Muskingum Board") for judgment on the pleadings. However, based upon our independent review under S.Ct.Prac.R. 12.04(C), we sua sponte dismiss the amended complaint for failure to state a claim. We deny relators' motion for leave to file a second amended complaint, because the proposed amendments would not cure the defects that prevent relators from stating an actionable claim and would therefore be futile. We deny the remaining motions as moot.

The allegations of the amended complaint

{¶ 3} On May 8, 2018, the Ohio Republican Party held a primary election to nominate a candidate for United States Representative for the 12th Congressional District. The field of ten candidates included Leneghan and Troy Balderson, who ultimately was declared to be the winner of the primary. According to relators' amended complaint, the results reported by the Muskingum Board showed that Balderson received approximately 78 percent of the votes cast in that county. Leneghan and Clymer were "suspicious" of the results, in part because, as they state in their amended complaint, the votes for Balderson "were double of any other candidate in any other county in the district, with the exception of Relator Leneghan receiving 44% of the vote in Richland County."

{¶ 4} On May 31, Leneghan submitted a written request for a recount of the votes cast in 16 specified precincts in Muskingum County. The recount was scheduled for June 6.

{¶ 5} The statute governing the procedure for conducting a recount provides that "[a]t the time and place fixed for making a recount, the board of elections, in the presence of all observers who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them." R.C. 3515.04. But when one of Leneghan's appointed observers, Nicholas Murdock, arrived at the appointed time at the recount location on June 6, he discovered that the ballots had already been unsealed and sorted by precinct. According to Murdock's affidavit, the director of the Muskingum Board told him that when the ballots were sealed, the precincts had been mixed together, so the Muskingum Board had unsealed the ballot containers and sorted the ballots two days early, on June 4, to ensure completion of the recount in a timely manner.

{¶ 6} The amended complaint avers that "[t]he warehouse [where the recount occurred] consisted of four tables that had names on them for sorting the votes. The names were pre-sorted on the tables by Melanie Leneghan, Troy Balderson, Tim Kane, Other, and No Vote." It is unclear what the amended complaint means by "[t]he names were pre-sorted." (Emphasis added.) To the extent that the amended complaint seems to be alleging that the ballots were divided in advance into piles according to the candidate selected on each ballot, that allegation is not supported by Murdock's affidavit.

{¶ 7} The Muskingum Board staff conducted a manual recount of the ballots in public view, after which the ballots were electronically scanned for verification of the results. Before the Muskingum Board voted to certify the recount results, Murdock requested a copy of the Muskingum Board's official tally sheet. In response, he was given a document dated June 5 , 2018 (the day before), captioned "Election Summary Results," and was told that it stated the results of the recount. According to Murdock, election officials identified this as the same document they would send to the Franklin County Board of Elections ("the Franklin Board"). (Because the 12th Congressional District is a multicounty district, the results must be submitted to the board of elections of the county in which the major portion of the population of the district resides. R.C. 3515.05.) Based on these facts, relators believe that the Muskingum Board conducted an electronic recount a day before the official recount without giving notice to them.

{¶ 8} On June 20, 2018, Leneghan and Clymer commenced the present mandamus action, and on June 28, they filed an amended complaint. Their amended complaint seeks to compel the Muskingum Board to "set aside and not count" the ballots from the 16 Muskingum County precincts at issue in the recount and to certify new results to the secretary of state and the Franklin Board based on the votes from the remaining precincts. Leneghan and Clymer allege that if those ballots were set aside, then Leneghan would win the primary by approximately 1,400 votes. In addition, the amended complaint seeks writs of mandamus compelling Husted and the Franklin Board to amend the official results accordingly. Alternatively, the amended complaint asks us to order a new primary election in Muskingum County for the Republican Party nomination for the 12th Congressional District and to order the Muskingum Board "to reimburse Relator Leneghan the hundreds of thousands of dollars she spent on the primary election," to pay damages, to reimburse Leneghan her recount fees, and to pay relators' attorney fees. Finally, the amended complaint demands a writ of mandamus compelling Husted to investigate the alleged election-law violations that occurred in Muskingum County.

Procedural history

{¶ 9} Husted was the first respondent to file an answer, on July 17. Two days later, the Franklin Board filed an answer and the Muskingum Board filed an answer and a motion for judgment on the pleadings. On July 27, relators filed a motion to strike a portion of Husted's answer.

{¶ 10} On July 30, relators filed a flurry of motions: a motion to strike portions of the Franklin Board's answer, an omnibus motion captioned "Relators' Motion to Strike, Motion to Re-Classify and Motion to Dismiss Respondent Muskingum County Board of Elections Claims Made Within Their Answer and Judgement [sic] on the Pleadings" and then later that same day, amended versions of those two motions. Relators also filed a motion for leave to file a second amended complaint. The three respondents all filed memoranda in response to the various motions.

{¶ 11} Meanwhile, on July 19, Balderson filed a motion for leave to intervene. On July 30, relators filed a memorandum in opposition. Two days later, relators filed a motion for leave to file a revised memorandum in opposition to Balderson's motion or, in the alternative, for leave to withdraw their memorandum in opposition.

{¶ 12} On August 8, relators filed a motion to expedite the case and a motion for injunctive relief. The court sua sponte ordered the parties to file any responses by 5:00 p.m. on August 10. In addition to opposition memoranda from the three respondents, the court received a memorandum from Balderson, accompanied by a motion for leave to file. On August 16, relators filed a memorandum opposing Balderson's motion for leave to file his opposition memorandum.

Legal analysis

The motion for judgment on the pleadings

{¶ 13} When considering a Civ.R. 12(C) motion for judgment on the pleadings, a court must construe as true the material allegations made in the complaint, along with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party. Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act , 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 10.³ Judgment is proper only if it appears beyond doubt that the nonmoving party can prove no set of facts entitling it to relief. Id. " ‘Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law.’ "

Rayess v. Educational Comm. for Foreign Med. Graduates , 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

{¶ 14} The Muskingum Board's motion makes four arguments. First, the motion points out that relators' amended complaint alleges that by opening the ballot containers and conducting the electronic recount prematurely, the Muskingum Board acted "in violation of R.C. 3514.04." And elsewhere, the amended complaint suggests that unsealing the ballots violated " R.C. 3504.04." The Muskingum Board asserts that relators cannot establish the violation of a clear legal duty because R.C. 3514.04 does not exist and R.C. 3504.04 clearly does not apply.⁴

{¶ 15} This is a frivolous argument. The amended complaint cites the correct provision, R.C. 3515.04, eight times, including once in between the two typographical errors, which are on the same page of the...