State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections

• Court: Ohio Supreme Court
• Writing for the Court: PER CURIAM; SWEENEY; RESNICK; MOYER
• Citation: State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections, 65 Ohio St.3d 186, 602 N.E.2d 631 (Ohio 1992)
• Decision Date: 09 December 1992
• Docket Number: No. 92-1911,92-1911
• Parties: The STATE ex rel. McMILLAN v. ASHTABULA COUNTY BOARD OF ELECTIONS.

Page 186

65 Ohio St.3d 186

602 N.E.2d 631

The STATE ex rel. McMILLAN v. ASHTABULA COUNTY BOARD OF ELECTIONS.

No. 92-1911.

Supreme Court of Ohio.

Submitted and Decided Oct. 22, 1992.

Opinion announced Dec. 9, 1992. ^*

Debra S. McMillan, relator, filed the instant complaint in prohibition to prevent the Ashtabula County Board of Elections, respondent, from placing the name of William A. Kobelak on the November 3, 1992 ballot as a candidate for Judge of the County Court of Ashtabula County, Eastern Division. McMillan had protested the validity of Kobelak's candidacy with the board.

According to an employee of the board, in a written statement submitted to the board at its September 9, 1992 protest hearing, she miscalculated the number of signatures Kobelak needed on his nominating petition. She informed Kobelak that he needed eighty-five signatures; he actually needed 167 signatures.

Acting on this misinformation, Kobelak filed several petition papers containing 125 signatures with the board on July 2, 1992. Apparently after learning he needed 167 signatures, Kobelak, on August 4, 1992, filed more petition papers. These latter petition papers contained 197 signatures.

After reviewing the second set of petition papers the board determined that they contained the signatures of 173 qualified electors, six more than required. The board evidently did not review Kobelak's first set of petition papers for sufficiency of signatures.

The board rejected McMillan's protest, and McMillan filed this complaint for writ of prohibition.

Debra S. McMillan, pro se.

Gregory J. Brown, Pros. Atty., for respondent.

PER CURIAM.

R.C. 3513.05 states:

" * * * The declaration of candidacy and all separate petition papers shall be filed at the same time as one instrument. * * * "

McMillan, inter alia, argues that the board had no authority to accept any petition papers other than those first filed on July 2 and, since those petition papers contained fewer than the number of legally required signatures, the board should have ruled Kobelak off the ballot. The board responds that a candidate who relies to his detriment on erroneous information given him by a board of elections should be permitted to file a new set of petition papers. We agree with McMillan and grant the writ. With this disposition, we need not address McMillan's remaining arguments.

In State ex rel. Weaver v. Wiethe (1965), 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, Weaver, a candidate for city council, filed a nominating petition consisting of several separate petition papers that contained 562 signatures. Three days later, the board of elections notified the candidate that only 395 signatures, 105 less than needed, were valid. The candidate then attempted to withdraw his nominating petition to obtain additional valid signatures on additional petition papers, but the board refused this demand. Nevertheless, and within the deadline, the candidate presented additional petition papers, containing 199 signatures, to the board. The board, however, rejected the candidacy.

In a mandamus action seeking to place Weaver's name on the ballot, we construed Section 4, Article IX of Cincinnati's charter, which reads much like R.C. 3513.05 and states:

" * * * [A]ll separate papers comprising a nominating petition shall be assembled and filed * * * as one instrument * * *."

We held that traditional notions of fair play might allow a candidate to withdraw his petition papers or file additional papers. However, we concluded that the plain language of the charter prevented this. Moreover, we observed that R.C. 3501.38(I) prohibits altering, correcting, or adding to a petition after it is filed in a public office. Accordingly, we denied the writ.

In State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879, Senn, a candidate for judge, submitted eleven part-petitions with signatures to a clerk at the board of...