State ex rel. Linnabary v. Husted

• Decision Date: 03 April 2014
• Docket Number: No. 2014–0359.,2014–0359.
• Citation: 8 N.E.3d 940,138 Ohio St.3d 535
• Parties: The STATE ex rel. LINNABARY v. HUSTED.
• Court: Ohio Supreme Court

138 Ohio St.3d 535

8 N.E.3d 940

The STATE ex rel. LINNABARY

v.HUSTED.

No. 2014–0359.

Supreme Court of Ohio.

Submitted March 26, 2014.

Decided April 3, 2014.

Mark G. Kafantaris, Columbus, and Mark R. Brown, for relator.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy Solicitor, and Kristopher J. Armstrong, Assistant Attorney General, for respondent.

Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Steven W. Tigges, Stuart G. Parsell, and Daniel P. Mead, Columbus, urging denial of the writ for amicus curiae, Gregory Felsoci.

PER CURIAM.

{¶ 1} In this expedited election case, relator, Steven Linnabary, seeks a writ of mandamus compelling respondent, Ohio Secretary of State Jon Husted, to certify his candidacy as Libertarian Party candidate for Ohio attorney general in the May 6, 2014 primary election. For the following reasons, we deny the writ. We also deny the motion to intervene of Gregory Felsoci.

Facts and procedural history

{¶ 2} The relevant facts are not in dispute.

{¶ 3} On December 30, 2013, Linnabary filed a declaration of candidacy and nominating petition to run in the Libertarian primary for the office of attorney general. Linnabary submitted 94 part petitions, containing 968 signatures. Upon review, the local boards of elections determined that 519 of the signatures were valid, more than the 500 signatures required by law to appear on the ballot. Thereafter, Husted certified Linnabary's candidacy for the May 6, 2014 ballot.

{¶ 4} On February 21, 2014, Carl Michael Akers filed a protest against Linnabary's candidacy. Husted appointed Bradley A. Smith to serve as hearing officer at the protest hearing. Smith consolidated the Akers protest with separate protests filed against the Libertarian candidates for governor and lieutenant governor. One of the protests against the Libertarian candidates for governor and lieutenant governor was filed by proposed intervenor Gregory Felsoci.

{¶ 5} The hearing took place on March 4, 2014.

{¶ 6} With respect to the Linnabary protest, Smith heard evidence pertaining to three issues: (1) whether Akers had standing to protest Linnabary's candidacy, (2) whether Oscar Hatchett, a circulator of petitions for Linnabary, was a member of the Libertarian Party and thus eligible to circulate petitions, and (3) whether the part petitions circulated by Hatchett were defective because they failed to identify any employer for Hatchett.

{¶ 7} On March 7, 2014, Smith issued a report and recommendation on the consolidated protests. Smith rejected Linnabary's assertion that Akers lacked standing to protest his candidacy. As to the merits of the protest, Smith first determined that Hatchett did meet the requirement in R.C. 3513.05 that as a circulator, he be a member of the Libertarian Party, and Smith therefore recommended rejection of the protest on that point. Second, Smith concluded that Hatchett acted as an independent contractor when circulating Linnabary's petitions and that Hatchett violated R.C. 3501.38(E)(1) by failing to identify his employer.

{¶ 8} Based on these conclusions, Smith recommended rejection of all part petitions circulated by Hatchett on behalf of Linnabary. Smith also recommended sustaining the protest against the Libertarian gubernatorial slate. The gubernatorial candidacies are the subject of federal litigation pending before Judge Michael Watson in the United States District Court for the Southern District of Ohio. Libertarian Party of Ohio v. Husted, S.D.Ohio No. 2:13–cv–953. On March 19, 2014, Judge Watson issued a decision denying a motion for a preliminary injunction. He held that R.C. 3501.38(E), the provision requiring paid circulators of election petitions to disclose the name and address of “the person employing the circulator,” did not violate the First Amendment or the due-process rights of the circulators.

{¶ 9} The same day that Smith issued his report, Husted issued a decision letter adopting Smith's conclusions. As a result of rejecting the part petitions circulated by Hatchett, Linnabary no longer had sufficient signatures to qualify for the primary ballot.

{¶ 10} On March 10, 2014, Linnabary filed suit in this court seeking a writ of mandamus to compel Secretary Husted to restore his name to the ballot. Secretary Husted filed an answer on March 17, 2014.

Analysis

Felsoci's motion to intervene

{¶ 11} Felsoci bases his request to intervene on Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, a case in which this court permitted intervention in an expedited election case by the persons who filed the original protest. But Blankenship is distinguishable; Felsoci never filed a protest against Linnabary. He filed a protest against the Libertarian Party candidates for governor and lieutenant governor. Because he has no direct interest in this case, we deny his motion to intervene.

{¶ 12} Alternatively, Felsoci asks the court to accept his brief as an amicus brief. We find this appropriate. However, a person who is not entitled to intervene is also not entitled to submit evidence. State ex rel. Citizen Action v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902, ¶ 23. For this reason, we disregard the affidavit of Brandon Lynaugh, submitted by Felsoci as evidence.

The writ of mandamus

{¶ 13} To prevail in this mandamus case, Linnabary must establish a clear legal right to the requested relief, a clear legal duty on the part of Secretary Husted to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Linnabary must prove that he is entitled to the writ by clear and convincing evidence. Id. at ¶ 13.

{¶ 14} Moreover, “[i]n extraordinary-writ actions challenging a decision of the secretary of state, the standard is whether the secretary engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable law.” State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427, 2010-Ohio-1873, 928 N.E.2d 1072, ¶ 9. There is no evidence of fraud or corruption here, so the dispositive issue is whether Husted abused his discretion or clearly disregarded applicable law by invalidating the petitions circulated by Hatchett for failure to comply with R.C. 3501.38(E)(1).

Laches

{¶ 15} Husted first argues that the court should reject Linnabary's mandamus petition based on laches. Laches may bar relief in an election-related matter if the person seeking relief fails to act with the requisite diligence. State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119.

{¶ 16} Husted appears to concede that Linnabary acted diligently by filing his complaint within three days of the secretary's decision to remove him from the ballot. Husted's theory is that the disclosure law in question has been on the books since 2005, so Linnabary had nearly a decade in which to seek a declaratory judgment or extraordinary writ. But Linnabary did not have a claim to assert until Husted removed his name from the ballot. We decline to dismiss on laches.

Protestor standing

{¶ 17} Paragraph 13 of R.C. 3513.05 states that a protest against a candidacy for party nomination may be filed “by any qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whose declaration of candidacy the elector objects to.” Linnabary asserts that Akers lacked standing before Secretary Husted to protest Linnabary's candidacy for the Libertarian Party nomination because Akers is not a member of the Libertarian Party.

{¶ 18} Husted borrows a definition of “member of the same political party” from paragraph 7 of R.C. 3513.05 to argue that Akers had the ability to file a protest against Linnabary. Husted alternatively argues that even if Akers did not meet the definition of “member of the same political party” under R.C. 3513.05 for purposes of filing his protest, R.C. 3501.39(A)(3) authorized Secretary Husted to remove Linnabary from the ballot upon discovering Hatchett's defective part petitions. R.C. 3501.39(A)(3) provides that the secretary of state or boards of elections shall accept any petition unless “(3) the candidate's candidacy or the petition violates the requirements of this chapter, Chapter 3513. of the Revised Code, or any other requirements established by law.”

{¶ 19} Under the circumstances here, we agree with Husted that he had the authority under R.C. 3501.39 to investigate noncompliance by a petition circulator once he learned of it and to reject petitions for noncompliance. Therefore, we find that we need not decide whether Akers had standing to file the protest against Linnabary.

Independent contractors and R.C. 3501.38(E)(1)

{¶ 20} R.C. 3501.38 governs declarations of candidacy and nominating petitions. Subsection (E)(1) requires circulators to sign a statement making certain attestations and also states that on the nominating petition, “the circulator shall identify the circulator's name, the address of the circulator's permanent residence, and the name and address of the person employing the circulator to circulate the petition, if any.” The dispute between the parties concerns the meaning of the word “employing.”

{¶ 21} Linnabary asserts that “employing” connotes a strict employer-employee relationship. Therefore, an independent contractor, such as Hatchett, would have no employer to identify. Husted relies on the dictionary definition and everyday meaning of “employ” to argue that “employing” in R.C. 3501.38(E)(1) means “to hire,” whether as an employee or independent contractor.

{¶ 22} We find that Secretary Husted has set forth a reasonable interpretation of R.C. 3501.38(E)(1) based on common usage of the term “employ.” The “ ‘paramount...