State ex rel. Morris v. Stark Cnty. Bd. of Elections

• Decision Date: 09 September 2015
• Docket Number: No. 2015–1277.,2015–1277.
• Citation: 143 Ohio St.3d 507,39 N.E.3d 1232,2015 Ohio 3659
• Parties: The STATE ex rel. MORRIS et al. v. STARK COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

143 Ohio St.3d 507

39 N.E.3d 1232

2015 Ohio 3659

The STATE ex rel. MORRIS et al.

v.STARK COUNTY BOARD OF ELECTIONS et al.

No. 2015–1277.

Supreme Court of Ohio.

Submitted Sept. 2, 2015.

Decided Sept. 9, 2015.

Tzangas Plakas Mannos, Ltd., and Lee E. Plakas, Canton; and Center for Constitutional Litigation, P.C., and Robert S. Peck, for relators Frank Morris, Chris Smith, Thomas E. West, Kevin Fisher, David R. Dougherty, John Mariol II, and Edmond J. Mack.

N. Zachary West, for relator Ohio Democratic Party.

John D. Ferrero, Stark County Prosecuting Attorney, and Deborah A. Dawson and Stephan P. Babik, Assistant Prosecuting Attorneys, for respondent Stark County Board of Elections.

Michael DeWine, Attorney General, and Sarah E. Pierce, Zachery P. Keller, and Nicole M. Koppitch, Assistant Attorneys General, for respondent Ohio Secretary of State Jon Husted.

Vasvari & Zimmerman, Raymond V. Vasvari Jr., and K. Ann Zimmerman, for

intervening respondent Thomas M. Bernabei.

PER CURIAM.

{¶ 1} This is an expedited election case in which relators seek a writ of prohibition to prevent respondents, Secretary of State Jon Husted and the Stark County Board of Elections, from placing the name of intervening respondent, Thomas M. Bernabei, on the November 2015 ballot as an independent candidate for mayor of Canton. We deny the writ.

Background

{¶ 2} Tom Bernabei has a history as a member of the Democratic Party stretching back 40 years. Most recently, Bernabei, running as a Democrat, won a four-year term on the Stark County Board of Commissioners in November 2012.

{¶ 3} Bernabei gave no thought to running in the mayoral primary because at the time, in his words, his focus was on county government. But, he testified, two incidents galvanized his decision to run for mayor as an independent. On Wednesday, April 22, 2015, there was a debate between the two Democratic mayoral candidates. Bernabei, who listened on the radio, described himself as "disillusioned by the nature, quality, and responses [sic] of both candidates." Bernabei perceived a failure of the two-party system: the Democratic Party failed to provide a quality candidate, and the Republican Party did not field a candidate at all.

{¶ 4} The second galvanizing event occurred the following Sunday, April 26. That morning, the Canton Repository published an editorial in which it criticized the two candidates, refused to endorse either one, and called for an independent to enter the race.

{¶ 5} Bernabei and his wife were scheduled to fly to Clearwater Beach, Florida, for a prearranged vacation, departing the evening of Thursday, April 30, and returning the evening of Sunday, May 3. Before he left, Bernabei took steps to lay the groundwork for an independent campaign.

{¶ 6} The day after the Repository editorial, Bernabei contacted an election-law attorney, Donald McTigue, seeking information about how to become an independent. He also spoke with "various friends and advisors," including Phil Giavasis, chairman of the Stark County Democratic Party, about the step he was contemplating.

{¶ 7} From his conversation with McTigue, Bernabei understood that he needed to establish a residence in the city of Canton. At the time, Bernabei and his wife resided outside the city, in Jackson Township, at a home on Dunkeith Drive (the "Hills & Dales" house). Bernabei and his wife owned a house in Canton (the "Lakecrest" house), in which they had not lived since 2004. The house was leased to a doctor and his family. In early April, the doctor's family had informed Bernabei that they planned to move because they needed a larger house. They anticipated closing on a new house sometime around the end of April, but could not identify an exact date.

{¶ 8} As of the last week of April, Bernabei still did not know when the doctor's family would move out. On Tuesday, April 28, he asked the doctor's wife if he could live in the house, perhaps in a back bedroom, starting Wednesday night, for purposes of running for office. She said no.

{¶ 9} So Bernabei turned to a friend who owned a vacant house in Canton (the "University Avenue" house). On Thursday, April 30, 2015, Bernabei signed a lease commencing May 1, 2015, with an initial term of one month, renewable on a month-to-month basis. Bernabei paid his friend $1,000 for the May rent. He also delivered a separate check, which was never cashed, for a security deposit and he received a garage-door opener and security codes at the time he signed the lease.

{¶ 10} Around noon on Thursday, April 30, Bernabei met with Jeanette Mullane, deputy director of the county board of elections. One purpose of the meeting was to complete a change-of-address form, switching his voting address from Hills & Dales to the University Avenue house. Bernabei testified that he was at that point leaning toward disaffiliation but had yet to reach a final decision. Therefore, he postdated the form for May 3 and told Mullane that he would instruct her whether to file the form once he reached a final decision.

{¶ 11} Bernabei also arranged the meeting with Mullane for the purpose of handing to her four resignation letters: one from the Democratic Party Central Committee and one each from the Democratic clubs in Canton, Massillon, and Alliance. He asked Mullane to hold the letters and, if he decided to run as an independent, to deliver the letters to Democratic Party Chairman Giavasis. She agreed to do so.

{¶ 12} Thus, Bernabei was able to testify without contradiction that he had resigned from the Democratic Party Central Committee. And relators concede that he effectively resigned from one of the clubs. But representatives from the Alliance Area Democratic Club and the Jefferson–Jackson Democratic Club in Canton testified that they never received a letter of resignation from Bernabei.

{¶ 13} Bernabei reached his final decision to run for mayor on Saturday, May 2, 2015, while still in Clearwater Beach. He called Mullane and told her to file the change-of-address form. He then asked his wife to change their plane reservations so they could return to Canton as early as possible. They flew back on Sunday morning, and Bernabei set to work drafting his nominating petition and contacting possible circulators.

{¶ 14} On Sunday night, he moved into the University Avenue house. He took with him a bunk bed (with frame, mattress, sheets, blankets, and pillows), a lamp, a lounge chair, two books, three or four suits with ties, three or four dress shirts, dress shoes, a belt, socks, underwear, blue jeans, shorts, t-shirts, a sweatshirt, tennis shoes, a razor, shampoo, a toothbrush and toothpaste, towels, a card table with one or two folding chairs, an iPod/phone charger, a laptop and printer, bananas, milk, Cheerios, Diet Pepsi, rum, vitamins, Metamucil, Lipitor

, aspirin,

Advil

, a large duffel bag, plastic cups, and trash bags. Judge Richard Reinbold visited the University Avenue house and subsequently testified that "it was obvious that he was in that place to live." He reported seeing signs of habitation in the kitchen, bedroom, bathroom, and garage, including a bed, clothing, a toothbrush, brushes, and kitchen implements.

{¶ 15} Bernabei slept in the University Avenue house for four consecutive nights, from Sunday, May 3, through Wednesday, May 6. On May 6, his tenant, the doctor, surrendered possession of the Lakecrest house, and Bernabei slept at the Lakecrest house for the first time on the night of May 7, 2015. On May 15, 2015, Bernabei executed a second change-of-address form, now designating the Lakecrest house as his permanent voting location. During his time in the University Avenue house, Bernabei's wife did not move there. On primary day, she voted in the Hills & Dales precinct. She moved straight from Hills & Dales to Lakecrest.

{¶ 16} Bernabei voted a provisional ballot at the board of elections on May 4, 2015, using the University Avenue address.

That same day, he resigned as treasurer for three Democratic campaigns and filed his statement of candidacy and nominating petitions.

Procedural history

{¶ 17} On May 29, 2015, Frank Morris and eight other protesters (collectively, "Morris") filed a protest against Bernabei's candidacy with the Stark County Board of Elections. The board conducted a protest hearing on July 6, 2015, at the end of which the members deadlocked two-to-two on the protest. On July 31, 2015, Secretary of State Husted broke the tie in favor of certifying Bernabei's independent candidacy for the November ballot.

{¶ 18} On August 4, Morris filed the present suit for a writ of prohibition. The court granted Bernabei leave to intervene, and the case is fully briefed.

Standard of review

{¶ 19} To prevail in their protest, Morris had to prove by clear and convincing evidence that Bernabei's declaration was not made in good faith. See State ex rel. Monroe v. Mahoning Cty. Bd. of Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d 524, ¶ 25. And in an extraordinary-writ action challenging a decision of the secretary of state, the standard is whether the secretary of state engaged in fraud or corruption, abused his 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.

{¶ 20} Morris objects to Bernabei's candidacy on two grounds: (1) Bernabei was allegedly not a genuine resident of Canton on the date he filed his nominating petitions and (2) he did not actually disaffiliate from the Democratic Party before filing his petitions, which would necessarily mean that his declaration was not made in good faith. Subsumed in the second objection is a question of first impression in Ohio: whether a prospective candidate who is an incumbent officeholder as a Democrat or Republican must resign his office in order to run for a different office as an independent.

Residency

{¶ 21} In his tie-breaking letter, Secretary of State Husted rejected Morris's claim that Bernabei...