State ex rel. Miller v. Hamilton Cnty. Bd. of Elections

• Decision Date: 18 March 2021
• Docket Number: No. 2021-0274,2021-0274
• Citation: 175 N.E.3d 486,165 Ohio St.3d 13
• Parties: The STATE EX REL. MILLER v. HAMILTON COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

165 Ohio St.3d 13

175 N.E.3d 486

The STATE EX REL. MILLER

v.HAMILTON COUNTY BOARD OF ELECTIONS et al.

No. 2021-0274

Supreme Court of Ohio.

Submitted March 12, 2021

Decided March 18, 2021

The Law Firm of Curt C. Hartman and Curt C. Hartman, Columbus, for relator.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T. Stevenson and Jesse K. Daley, Assistant Prosecuting Attorneys, for respondent Hamilton County Board of Elections.

McTigue & Colombo, L.L.C., Donald J. McTigue, and Derek S. Clinger ; Columbus, and Katz, Teller, Brant & Hild, Peter J. O'Shea, and Evan T. Nolan, Cincinnati, for respondent Aftab Pureval.

Andrew W. Garth, City Solicitor, Emily Smart Woerner, Deputy City Solicitor, and Erica Faaborg, Assistant City Solicitor, urging denial of the writ for amicus curiae, city of Cincinnati.

Per Curiam.

{¶ 1} Relator, Mark W. Miller, seeks a writ of prohibition barring respondents Hamilton County Board of Elections and its members¹ from placing the name of respondent Aftab Pureval on the ballot as a candidate for mayor of Cincinnati in the May 4, 2021 nonpartisan primary election. Miller claims the board abused its discretion and clearly disregarded applicable law by denying his protest of Pureval's candidacy, because Pureval's part-petitions did not include sworn affidavits of the petition circulators, which Miller claims the Cincinnati City Charter requires. Respondents and amicus curiae, the city of Cincinnati, counter that when all applicable sections of the charter are considered, Pureval's petition met the requirements. We agree, and we therefore deny the writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} The Cincinnati City Charter provides that "candidates for mayor shall be determined at a nonpartisan primary election to be held on the first Tuesday after the first Monday in May." Article IX, Section 1a, Cincinnati City Charter. To be placed on the primary-election ballot, a mayoral candidate must submit a petition to the board of elections. Article IX, Section 2, Cincinnati City Charter. Pureval submitted his nominating petition, consisting of 76 part-petitions, to the board on February 10, 2021.

{¶ 3} On February 24, the board received from Miller, a registered elector in the city of Cincinnati, a written protest of Pureval's petition under R.C. 3501.39(A). Miller's protest letter alleged that under the Cincinnati City Charter, circulator statements on part-petitions must be by sworn affidavit. The letter claimed that Pureval's part-petitions contained only unsworn circulator statements and that the board should therefore reject his petition. On February 24, the board set a protest hearing for March 2.

{¶ 4} At the hearing, the board heard arguments from counsel for Miller and counsel for Pureval. The latter argued that the Cincinnati City Charter prescribes a form of petition that Pureval's part-petitions complied with; that under R.C. 3501.38(L), Pureval's petition could not be rejected, because he obtained his petition forms from the board within 90 days of the filing deadline; and that all the other mayoral candidates had used the same forms. These last two claims were based on unsworn factual assertions made by Pureval's attorney.

{¶ 5} The board's counsel then advised that Pureval needed only to "substantially compl[y]" with the charter and that his petitions (as well as those of the other mayoral candidates) did substantially comply. The board voted unanimously to deny the protest, without comment. The board then certified Pureval and five other mayoral candidates to the ballot.

{¶ 6} Miller filed this prohibition action on March 3. We ordered expedited briefing, see 161 Ohio St.3d 1457, 2021-Ohio-574, 164 N.E.3d 454, which is now complete.

The city of Cincinnati filed an amicus curiae brief in support of the board.

II. ANALYSIS

A. Threshold Issues

{¶ 7} Pureval asserts four threshold arguments. We reject all four.

1. S.Ct.Prac.R. 12.02's Affidavit Requirements

{¶ 8} Pureval first argues that we must dismiss the cause because the affidavit accompanying the complaint does not comply with S.Ct.Prac.R. 12.02(B), which states that a complaint in an original action "shall be supported by an affidavit specifying the details of the claim," S.Ct.Prac.R. 12.02(B)(1). The affidavit "shall be made on personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that the affiant is competent to testify to all matters stated in the affidavit." S.Ct.Prac.R. 12.02(B)(2). "We have routinely dismissed original actions, other than habeas corpus, that were not supported by an affidavit expressly stating that the facts in the complaint were based on the affiant's personal knowledge." State ex rel. Hackworth v. Hughes , 97 Ohio St.3d 110, 2002-Ohio-5334, 776 N.E.2d 1050, ¶ 24.

{¶ 9} Miller's complaint was accompanied by an affidavit in which his attorney, Curt C. Hartman, declares that Hartman "has personal knowledge of the factual allegations above and such allegations are true and accurate." Pureval argues that the affidavit is insufficient because it is devoid of specific details or admissible facts and contains no information establishing that Hartman is competent to testify to the matters alleged in the complaint.

{¶ 10} We rejected a similar argument in Wellington v. Mahoning Cty. Bd. of Elections , 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 420. In that case, the relator's affidavit "state[d] that he ha[d] ‘reviewed the facts contained in the foregoing Petition for Writ of Prohibition, and affirm [sic] that they are accurate based on my personal knowledge.’ " Id. at ¶ 16. We reasoned:

By specifying in his affidavit that he swore to the accuracy of the facts in the petition and stating that those facts are based on his personal knowledge, Sheriff Wellington satisfied the rule because his petition—as verified by his affidavit—specified the details of his claim, set forth facts admissible in evidence, and affirmatively established that he is competent to testify to the material facts—i.e., he filed a protest challenging Aey's candidacy for sheriff, and the board denied the protest at the conclusion of a hearing at which he testified and presented evidence. He did not need to repeat these same statements in his affidavit, which already verified the truth of these statements.

Id. at ¶ 19.

{¶ 11} Similarly, here, the complaint specifies the details of the claim, sets forth admissible facts, and establishes Hartman's competency to testify to the material facts, as he was present for and involved in the protest proceedings. We will not dismiss the complaint for failure to comply with S.Ct.Prac.R. 12.02.

2. Laches

{¶ 12} Pureval next argues that Miller's claim is barred by the doctrine of laches. "The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party."

State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections , 74 Ohio St.3d 143, 145, 656 N.E.2d 1277 (1995).

{¶ 13} Miller filed his complaint one day after the board rejected his protest. Pureval does not, however, challenge Miller's delay in the context of this case. Rather, he asserts that Miller's true challenge is not to Pureval's candidacy but to the board's interpretation of the Cincinnati City Charter, which he claims has been consistent since 2001. He therefore argues that Miller unreasonably delayed for 20 years, without excuse—causing prejudice to Pureval by making this case an expedited election matter.

{¶ 14} We reject this argument, which ignores such questions as whether Miller had knowledge of the board's longstanding interpretation or was eligible to challenge it before he protested Pureval's petition. Moreover, despite the potential for broader implications, the subject matter of this prohibition action is the board's rejection of Pureval's 2021 mayoral petitions, see R.C. 3501.39(A). Because Miller filed this action one day after the board rejected his protest, we find that laches does not bar his claim.

3. Unclean Hands

{¶ 15} Pureval next argues that Miller's claim is barred by the doctrine of unclean hands. Pureval argues that Miller has, without explanation, singled him out by challenging his petition but not those of the other mayoral candidates who used the same forms. He argues that this calls Miller's motives into question and amounts to discriminatory targeting.

{¶ 16} Pureval cites no authority for applying the equitable doctrine of unclean hands in this prohibition action. We have, however, occasionally recognized its potential applicability in mandamus actions. See State ex rel. Morgan v. New Lexington , 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 53, quoting State ex rel. Albright v. Haber , 139 Ohio St. 551, 553, 41 N.E.2d 247 (1942) ("On rare occasions, we have recognized that ‘while mandamus is considered a legal remedy, equitable principles often govern its issuance, and it may be denied to those who do not come before the court with clean hands’ ").

{¶ 17} In any event, "the doctrine of unclean hands requires a showing that [the relator] engaged in reprehensible conduct, not merely negligent conduct," State ex rel. Columbus Coalition for Responsive Govt. v. Blevins , 140 Ohio St.3d 294, 2014-Ohio-3745, 17 N.E.3d 578, ¶ 12, yet the record here is undeveloped on the question of Miller's motivations. We find that the doctrine of unclean hands does not bar Miller's claim.

4. Failure to Join Necessary Parties under Civ.R. 19(A)

{¶ 18} Finally, Pureval argues that we must deny Miller's requested relief for failure to join necessary parties under Civ.R. 19(A). He argues that the equal-protection clauses of the Ohio and United States Constitutions would prohibit the selective enforcement of the Cincinnati City Charter, instead requiring the rejection of all mayoral petitions if his is rejected. He therefore argues that complete relief...