State ex rel. Phillips v. Lorain Cty. Bd. of Elections

• Decision Date: 23 October 2001
• Docket Number: No. 01-1765.,01-1765.
• Citation: 757 NE 2d 319,93 Ohio St.3d 535
• Parties: THE STATE EX REL. PHILLIPS v. LORAIN COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

93 Ohio St.3d 535

757 NE 2d 319

THE STATE EX REL. PHILLIPS v. LORAIN COUNTY BOARD OF ELECTIONS.

No. 01-1765.

Supreme Court of Ohio.

Submitted October 18, 2001.

Decided October 23, 2001.

Phillips & Co., L.P.A., and Gerald W. Phillips, pro se.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondent.

Per Curiam.

On August 20, 2001, Thomas L. Wearsch filed a nominating petition and statement of candidacy for the office of Council at Large in the city of Avon, Lorain County, Ohio. The nominating petition and statement of candidacy was composed of five part-petitions and was on a form prescribed by the Secretary of State of Ohio.

The petition form provided:

"STATEMENT OF CANDIDACY

"I______________, the undersigned, * * * declare that I desire to be a candidate for election to the office of____________, in the municipality of ______________, for the: [] full term or [] unexpired term ending ___________, in_____________ County, Ohio at the general election to be held on the day of________,_________day of ____________, ____________ "* * *

"NOMINATING PETITION

"We, the undersigned, qualified electors of the State of Ohio, whose voting residence is in the county, city, village, or township set opposite our names, hereby nominate______ as a candidate for election to the office of___________ in the municipality of _____________, for the: [] full term or [] unexpired term ending________, to be voted for at the next general election."

On the form, the instruction "[f]ill in the appropriate date" is under the blanks following the phrase "unexpired term ending." (Id.)

In two of the five part-petitions, Wearsch specified in the statement of candidacy section that he desired to be a candidate for the office of Council at Large for the "full term * * * ending 12-31-01," whereas in the statement of candidacy section on the other three part-petitions, Wearsch listed his candidacy for a "full term * * * ending 12-31-03." In the nominating petition section of all five part-petitions, Wearsch listed himself as a candidate for Council at Large for the "full term * * * ending 12-31-01 to be voted for at the next general election." In other words, in all of the part-petitions, in the statement of candidacy and nominating petition sections, Wearsch checked the boxes next to "full term," and he did not check the boxes next to "unexpired term ending," but he did insert either "12-31-01" or "12-31-03" in the blanks next to "unexpired term ending."

On the November 6, 2001 general election ballot for Avon, there are three available Council at Large seats. All three seats are for full terms ending December 31, 2003, not for full terms ending December 31, 2001. The three candidates receiving the highest vote total will be declared the successful candidates.

On September 4, 2001, relator, Gerald W. Phillips, an attorney who is an elector of Avon, filed a written protest pursuant to R.C. 3513.263 with respondent, Lorain County Board of Elections, against Wearsch's petition. Phillips claimed that the petition was defective because two part-petitions contained an incorrect term-ending date of December 31, 2001, in the statement of candidacy section and all five part-petitions had the same incorrect term-ending date of December 31, 2001, in the nominating petition section.

By letter dated September 21, Phillips contended that the board had failed to promptly set the hearing on his protest, and he requested an immediate protest hearing. On September 24, Phillips submitted a memorandum in support of his protest with the board. In his memorandum, Phillips asserted that specifying the appropriate term of office in a nominating petition is an absolute requirement of R.C. 3513.261 that requires strict compliance. Phillips did not specifically assert that Wearsch had failed to substantially comply with R.C. 3513.261.

On the same date that Phillips submitted his memorandum, September 24, 2001, the board held a hearing on Phillips's protest, at the conclusion of which the board unanimously denied the protest and reaffirmed the board's certification and validation of Wearsch's petition and his placement on the November 6, 2001 general election ballot.

On October 3, 2001, Phillips filed this action for a writ of prohibition to prevent the placement of Wearsch's name on the November 6, 2001 general election ballot and the counting and canvassing of any ballots for Wearsch at the election. Phillips also requested a writ of mandamus to compel the board to grant Phillips's protest, to reject the Wearsch petition, and to prohibit the placement of his name on the November 6, 2001 general election ballot. The board filed an answer, and the parties filed evidence and briefs pursuant to the expedited election schedule set forth in S.Ct.Prac.R. X(9).

Phillips requests writs of prohibition and mandamus to prevent the board from placing Wearsch's name on the November 6, 2001 general election ballot and counting any votes for him at the election. For the following reasons, Phillips's claims lack merit.

Mandamus

Phillips's mandamus claim is an ill-conceived request for prohibitory injunctive relief, i.e., to prevent Wearsch's candidacy at the November 6, 2001 general election. "In general, if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction." State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704, 710. We have applied this rule to election cases. State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 70-71, 647 N.E.2d 769, 771. Based on the foregoing precedent, we lack jurisdiction over Phillips's mandamus claim and it is dismissed.

Prohibition

Phillips also requests a writ of prohibition to prevent Wearsch's candidacy on the November 6, 2001 general election ballot. In order to be entitled to a writ of prohibition, Phillips must establish that (1) the board is about to exercise or has exercised judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. See State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 241, 736 N.E.2d 893, 895. Phillips has established that the board has exercised quasi-judicial power in denying his protest and that denial of the writ will cause injury for which he lacks an adequate remedy in the ordinary course of law.

Therefore, in order to be entitled to the requested writ of prohibition, Phillips must establish that the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Baur v. Medina Cty. Bd. of Elections (2000), 90 Ohio St.3d 165, 166, 736 N.E.2d 1, 2. Phillips asserts that the board abused its discretion and clearly disregarded applicable law, including R.C. 3513.261, in denying his protest and certifying Wearsch's candidacy.

R.C. 3513.261 governs the form of the nominating petition and statement of candidacy here and provides:

"The form of the nominating petition and statement of candidacy shall be substantially as follows:

"STATEMENT OF CANDIDACY

"I,......... (Name of candidate), the undersigned, hereby declare under penalty of election falsification * * * that I am a qualified elector in the precinct in which my voting residence is located. I hereby declare that I desire to be a candidate for election to the office of................. in the................ (State, District, County, City, Village, Township, or School District) for the ................. (Full term or unexpired term ending.........) at the General Election to be held on the.............day of.........,..... "* * *

"NOMINATING PETITION

"We, the undersigned, qualified electors of the state of Ohio, whose voting residence is in the County, City, Village, Ward, Township or Precinct set opposite our names, hereby nominate................ as a candidate for election to the office of........... in the.................... (State, District, County, City, Village, Township, or School District) for the............ (Full term or unexpired term ending................... ) to be voted for at the general election next hereafter to be held, and certify that this person is, in our opinion, well qualified to perform the duties of the office or position to which the person desires to be elected." (Emphasis added.)

Phillips claims that by using the incorrect term-ending date for the nominating petition portion of all five part-petitions and for the statement of candidacy on two of the five part-petitions, the petition failed to comply with the strict form requirements of R.C. 3513.261.

Admittedly, the settled rule is that election laws are mandatory and require strict compliance, and that substantial compliance is acceptable only when an election statute expressly permits it. State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 169, 602 N.E.2d 615, 617. R.C. 3513.261, however, expressly permits substantial compliance with the form of the...