State ex rel. Purdy v. Clermont Cty. Bd. of Elections

• Citation: 77 Ohio St.3d 338,673 N.E.2d 1351
• Decision Date: 22 January 1997
• Docket Number: No. 96-2067,96-2067
• Parties: The STATE ex rel. PURDY et al. v. CLERMONT COUNTY BOARD OF ELECTIONS et al.
• Court: United States State Supreme Court of Ohio

Page 338

77 Ohio St.3d 338

673 N.E.2d 1351

The STATE ex rel. PURDY et al. v. CLERMONT COUNTY BOARD OF ELECTIONS et al.

No. 96-2067.

Supreme Court of Ohio.

Submitted and Decided Oct. 8, 1996.

Opinion Announced Jan. 22, 1997. ^*

Relators in this election matter are Virginia M. Purdy and Anita M. Tighe. Respondents are the Clermont and Cuyahoga County Boards of Elections.

Relators became candidates in their districts for nomination for the offices of state representative, Ohio House of Representatives. Purdy attempted to secure the Republican Party nomination for election to the Eighty-Eighth House District, and Tighe the Democratic Party nomination for election to the Seventieth House District. However, both relators were defeated in their March 1996 primary elections.

Purdy and Tighe subsequently filed nominating petitions and statements of candidacy for election to the State Board of Education ("State Board") for the Tenth District and Fifth District, respectively. Relators timely filed their petitions with their boards of elections, seeking to have their petitions certified and their names placed on the ballots for the November 1996 election. See R.C. 3513.259.

Respondent Clermont County Board of Elections received two written protests challenging Purdy's candidacy, and respondent Cuyahoga County Board of Elections received one written protest challenging Tighe's candidacy. Relying on R.C. 3513.04, respondents sustained the protests and refused to certify the petitions.

On September 9, 1996, relators filed an original action in mandamus in this court, challenging respondents' interpretation of R.C. 3513.04 and further alleging that any reliance by respondents on the statute in refusing to certify their nominating petitions "is an unconstitutional infringement of Relators' right to ballot access and the right of a voter to vote for a candidate of her choice as guaranteed by the First and Fourteenth Amendments of the Constitution of the United States of America." As relief, relators request that we "(1) issue a Writ of Mandamus commanding Respondents to certify the Relators' candidacies on the November 5, 1996 ballot, (2) issue an alternative writ prohibiting the printing of ballots pending this Court's resolution of this case, and (3) award Relators their costs and attorneys' fees herein expended."

Benesch, Friedlander, Coplan & Aronoff, James F. DeLeone, C. David Paragas, N. Victor Goodman and J. Gregg Haught, Columbus, for relators.

Talikka, Ischie, Talikka, Wilson & Black and Neil R. Wilson, Painesville, for relator Anita M. Tighe.

Donald W. White, Clermont County Prosecuting Attorney, and Thomas L. Blust, Assistant Prosecuting Attorney, for respondent Clermont County Board of Elections.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Patrick J. Murphy and Michael P. Butler, Assistant Prosecuting Attorneys, for respondent Cuyahoga County Board of Elections.

DOUGLAS, Justice.

The issue in this case is whether respondents properly concluded that R.C. 3513.04 barred relators from running for the offices of the State Board in the November 1996 general election. R.C. 3513.04 provides that "[n]o person who seeks party nomination for an office or position at a primary election by declaration of candidacy * * * shall be permitted to become a candidate at the following general election for any office by nominating petition or by write-in." (Emphasis added.) R.C. 3513.259 specifies that "[n]ominations of candidates for the office of member of the state board of education shall be made only by nominating petition." (Emphasis added.)

Relators assert that R.C. 3513.04 pertains only to partisan elections and, therefore, respondents acted in clear disregard of R.C. 3513.04 by construing the statute to bar their candidacies for election to the State Board. Specifically, relators contend that R.C. 3513.04 should not be interpreted to prohibit unsuccessful candidates in a partisan primary from becoming candidates at the following general election for a nonpartisan office. Pursuant to R.C. 3505.04, individuals seeking election to the State Board are required to be listed on nonpartisan ballots.

The paramount consideration in construing a statute is legislative intent. State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5, 8, 630 N.E.2d 313, 315. " 'In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished.' " Id., quoting State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. "If the meaning of a statute is unambiguous and definite, then it must be applied as written and no further interpretation is appropriate." State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 997.

Relators contend that the term "any office," as set forth in R.C. 3513.04, pertains only to partisan offices and not nonpartisan offices such as the offices of the State Board. We disagree. "Words used in a statute must be accorded their usual, normal or customary meaning." State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections (1996), 75 Ohio St.3d 275, 277, 662 N.E.2d 17, 19; see, also, R.C. 1.42. "Any" means "one or some indiscriminately of whatever kind." Webster's Third New International Dictionary (1971) 97. "Office" means "[a] public charge or employment." Black's Law Dictionary (6 Ed.1990) 1082.

Clearly, R.C. 3513.04 is not limited to "any partisan office," as relators contend. If we were to interpret R.C. 3513.04 in this manner we would be adding language to the statute that simply does not exist. "It is the duty of the court to give effect to the words used and not to insert words not used." State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65, 66, 637 N.E.2d 1, 2. Moreover, relators' position is further undermined by the fact that R.C. 3513.04 has been amended to expand the breadth of the statute from barring unsuccessful primary candidates from running for the "same office" to barring them from running for "any office" at the following general election. See 124 Ohio Laws 673, 678. Indeed, the present version of R.C. 3513.04 contains no special exception for those candidates who run on a nonpartisan ballot. See, e.g., 1963 Ohio Atty.Gen.Ops. No. 478, at 491 ("For the purposes of [R.C. 3513.04], the question of whether a candidate runs on a partisan or non-partisan ballot is irrelevant.").

The language of R.C. 3513.04 is plain and unambiguous and conveys a clear and definite meaning. The statute unequivocally precludes the candidacies of relators for the offices of the State Board with respect to the November election. See also, 1993 Ohio Atty.Gen.Ops. No. 93-052, at 2-252 ("The language of this portion of R.C. 3513.04 is clear, and does not, therefore, require interpretation."). Thus, we find that respondents properly interpreted R.C. 3513.04 and, accordingly, did not act in clear disregard of the statute in denying certification of relators' nominating petitions.

Relators also argue, alternatively, that R.C. 3513.04 as interpreted and applied by respondents violates the First and Fourteenth Amendments to the United States Constitution. In particular, relators contend that their constitutional rights as candidates to ballot access and the rights of electors to vote for candidates of their choice have been improperly restricted by respondents' interpretation of R.C. 3513.04.

Initially, it is important to observe that although relators seek a writ of mandamus, the effect of the requested relief would be to enjoin respondents from enforcing the clear mandates of R.C. 3513.04 and to obtain a declaratory judgment on the constitutionality of the statute as it is applied to their situations. Normally, if the allegations in a complaint indicate that the real object sought is injunction, the complaint does not state a cause of action for mandamus and must be dismissed for want of jurisdiction. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 290, 649 N.E.2d 1205, 1207; State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1, 2-3, 640 N.E.2d 1136, 1137-1138. Relators could seek a declaratory judgment regarding the constitutionality of R.C. 3513.04, provided that they comply with R.C. Chapter 2721. See, specifically, R.C. 2721.03; see, also, R.C. 2721.12; and Sebastiani v. Youngstown (1979), 60 Ohio St.2d 166, 14 O.O.3d 405, 398 N.E.2d 558 (Where the constitutionality of an ordinance [or statute] is challenged by declaratory judgment, service of a copy of the proceeding upon the Attorney General is a jurisdictional requirement.).

Nevertheless, we have also concluded that the constitutionality of a statute may, in certain instances, be challenged by mandamus. State ex rel. Zupancic v. Limbach (1991), 58 Ohio St.3d 130, 133, 568 N.E.2d 1206, 1209; see, also, State ex rel. Brown v. Summit Cty. Bd. of Elections (1989), 46 Ohio St.3d 166, 545 N.E.2d 1256; and, generally, 1 Antieau, The Practice of Extraordinary Remedies (1987) 313-315, Section 2.20. Indeed, certain election matters may present extraordinary circumstances. In this regard, declaratory judgment might not provide an adequate remedy in the ordinary course of law. Brown, 46 Ohio St.3d at 167-168, 545 N.E.2d at 1258; and Thurn, 72 Ohio St.3d at 291-292, 649 N.E.2d at 1207-1208, citing State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 129, 412 N.E.2d 393, 394 ("[G]iven the proximity of the election, an injunction would arguably not constitute an adequate remedy because any 'appellate process would last well past the election.' ").

In the case at bar, relators would have a clear legal right to have their petitions certified if we determined that R.C. 3513.04 was unconstitutional as applied to their situation. Granted, relators could achieve nearly the same results as a writ of mandamus if they would seek a declaratory judgment coupled with a mandatory...