State ex rel. Livingston v. Miami County Bd. of Elections

• Citation: 963 N.E.2d 187,196 Ohio App.3d 263,2011 -Ohio- 6126
• Decision Date: 08 September 2011
• Docket Number: No. 2011–CA–12.,2011–CA–12.
• Parties: STATE ex rel. LIVINGSTON et al., v. MIAMI COUNTY BOARD OF ELECTIONS.
• Court: Ohio Court of Appeals

196 Ohio App.3d 263

2011 -Ohio- 6126

963 N.E.2d 187

STATE ex rel. LIVINGSTON et al.,

v.MIAMI COUNTY BOARD OF ELECTIONS.

No. 2011–CA–12.

Court of Appeals of Ohio, Second District, Miami County.

Decided Sept. 8, 2011.

Donald J. McTigue, Columbus, J. Corey Colombo, and Mark A. McGinnis, Columbus; and Bryan Pacheco, Cincinnati, for relators.

Gary A. Nasal, Miami County Prosecuting Attorney, and Mark W. Altier, Chief Civil Assistant Prosecuting Attorney, for respondents.

PER CURIAM.

[Ohio App.3d 265] {¶ 1} This matter is before the court in an original action commenced on petitions for writs of mandamus and prohibition filed by relators, James R. Livingston and Robert M. Harrelson. The respondent is the Miami County Board of Elections.

{¶ 2} The election of a candidate for the office of law director for the city of Troy, Ohio, will be submitted to the voters at the general election held on November 8, 2011. Petitioners Livingston and Harrelson are both residents of the city of Troy and are duly qualified electors of Miami County. In April 2011, prior to the filing deadline, both relators filed with the board petitions of candidacy for the office of law director of Troy. The form of petitions was as prescribed by R.C. 3513.261.

{¶ 3} On June 7, 2011, the board held a public hearing to consider the candidacies of nine persons who had filed petitions in the form prescribed by R.C. 3513.257. Each of those persons, including Livingston and Harrelson, had requested that his name appear on the ballot as a nonparty or “independent” candidate. R.C. 3501.01(I) provides:

{¶ 4} “ ‘Independent candidate’ means any candidate who claims not to be affiliated with a political party, and whose name has been certified on the office-type ballot at a general or special election through the filing of a statement of candidacy and nominating petition, as prescribed in section 3513.257 of the Revised Code.”

{¶ 5} The board heard testimony and took other evidence relative to the claims of each of the nine candidates that the candidate is not affiliated with a political [Ohio App.3d 266] party. Following that, the board adjourned its public hearing and retired to consider what it had heard. The board thereafter resumed its public hearing, at which the chairman of the board made the following pronouncement:

{¶ 6} “Thank you for your patience. We are now back on the record. We considered, and it is our duty to consider, the credibility, motive, voting record. We considered the evidence, the documents and we've considered the briefs. Present in our deliberations were the four board members and our counsel, Mr. Nasal and Mr. Altier. We considered it all and so we view it our duty to apply the law and the facts as we understand them to be.

{¶ 7} “I would also say for the record any recitation of facts or law by me or other board members is not intended to be any kind of finding of fact or conclusion of law, but rather our vote as announced was made in consideration of all the facts, all the evidence, everything in the record and the written material and briefs that were presented.

{¶ 8} “So with that we're going to now take a vote again on the record. And, Ms. Calendine, if you'll record the vote in the order in which we—well, let me explain as well our duty here is to make a determination about eligibility to be an independent candidate. So a yes vote means the petition is accepted. A no vote is the petition is not accepted.”

{¶ 9} The board voted to accept the petitions of seven of the nine independent candidates, including two who had filed petitions as candidates for the office of law director of Troy. The board voted to invalidate the petitions filed by relators Livingston and Harrelson.

{¶ 10} Relators filed joint petitions for writs of mandamus and prohibition on June 15, 2011, challenging the board's invalidation of their petitions. They filed an amended petition on June 21, 2011. Respondent filed an answer on June 28, 2011.

{¶ 11} “In extraordinary actions challenging the decisions of the Secretary of State and boards of elections, the standard is whether they engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard on applicable legal provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Relators make no claim of fraud or corruption. Consequently, the dispositive issue is whether the board abused its discretion in invalidating relators' petitions.

{¶ 12} R.C. 3501.38 governs petitions filed by candidates for election. R.C. 3501.39(A) establishes standards for unacceptable petitions. That section provides:

[Ohio App.3d 267] {¶ 13} “The secretary of state or a board of elections shall accept any petition described in section 3501.38 of the Revised Code unless one of the following occurs:

{¶ 14} “(1) A written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition is invalid, in accordance with any section of the Revised Code providing a protest procedure.

{¶ 15} “(2) A written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition violates any requirement established by law.

{¶ 16} “(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.”

{¶ 17} In State ex rel. Stefanick v. Marietta Mun. Court, 21 Ohio St.2d 102, 104, 255 N.E.2d 634 (1970), the Supreme Court held:

{¶ 18} “A writ of prohibition will be allowed only in the absence of a plain and adequate remedy in the ordinary course of the law and where the action complained of represents either a clear usurpation of judicial power or the assumption of jurisdiction where none exists.

{¶ 19} “Prohibition is a preventive writ rather than a corrective remedy and is designed to prevent a tribunal from proceeding in a matter which it is not authorized to hear and determine. It cannot be used to review the regularity of an act already performed.” (Citations omitted.)

{¶ 20} R.C. 3105.39(A) confers jurisdiction on the board to invalidate relators' petitions for any of the causes that section identifies. Further, the relief relators now seek to require the board to instead accept their petitions is a corrective remedy rather than preventive. Therefore, prohibition cannot lie.

{¶ 21} R.C. 2731.01 defines mandamus as “a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act [that] the law specially enjoins as a duty resulting from an office, trust, or station.” Ordinarily, mandamus is available only against a public officer or agency to require performance of an official act that the officer or agency has a clear legal duty to perform and has failed to perform and when the relator has no adequate legal remedy by way of appeal. The relator must demonstrate that he or she has a clear legal right to have the requested act performed. The proximity of an election establishes the lack of an adequate [Ohio App.3d 268] remedy in the ordinary course of law. State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.

{¶ 22} The board argues that “[a] mere abuse of discretion does not authorize the use of the writ of mandamus[.] * * * [O]rdinarily relief will only be granted upon a demonstration of a ‘gross abuse of discretion.’ ” The board relies on State ex rel. Libbey–Owens Ford Glass Co. v. Indus. Comm., 162 Ohio St. 302, 123 N.E.2d 23 (1954). The board relates that higher standard to the presumption that officers and boards “will be presumed to have properly performed their duties and not to have acted illegally but regularly and in a lawful manner.” State ex rel. Boccuzzi v. Cuyahoga Cty. Bd. of Commrs., 112 Ohio St.3d 438, 2007-Ohio-323, 860 N.E.2d 749, ¶ 16.

{¶ 23} Frankly, we have difficulty affording the board the presumption of regularity that the “gross abuse of discretion” standard requires. The board made no findings to support its decision to invalidate the relators' petitions. R.C. 3501.09(A)(1) and (2), which apply to written protests, expressly require “a determination by the election officials” before a board of elections may decline to accept petitions. The catch-all provision in R.C. 3501.09(A)(3) expresses no like requirements, but a determination is surely necessary to support a finding that a petition violates the requirements on R.C. Chapter 3501 or 3513 “or any other requirements established by law” before a petition is invalidated for those reasons. The board made none.

{¶ 24} Nevertheless, the parties agree that the board necessarily concluded that relators' claims that they are each an “independent candidate,” which is defined by R.C. 3501.01(I) to mean “any candidate who claims not to be affiliated with a political party,” is untrue. Further, the board contends that, in so doing, it relied on the Ohio Secretary of State Advisory No. 2007–05, which establishes guidelines for boards of elections passing on that question.

{¶ 25} The secretary of state is the chief election officer of the state of Ohio and has authority over county board of elections, R.C. 3501.05, including the authority to issue directives to boards. R.C. 3501.05(B), (M). Courts recognize the authority of the secretary of state in election matters and have a duty to defer to the secretary's interpretations of election law if it is subject to two different, but equally reasonable, interpretations. State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 651 N.E.2d 995 (1995). Boards of elections likewise have a duty to defer to the secretary in interpreting and implementing...