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

• Decision Date: 09 September 2015
• Docket Number: No. 2015–1297.,2015–1297.
• Citation: 145 Ohio St.3d 211,2015 Ohio 3658,48 N.E.3d 507
• Parties: The STATE ex rel. RICHARDS et al. v. STARK COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

145 Ohio St.3d 211

48 N.E.3d 507

2015 Ohio 3658

The STATE ex rel. RICHARDS et al.

v.STARK COUNTY BOARD OF ELECTIONS et al.

No. 2015–1297.

Supreme Court of Ohio.

Submitted Sept. 1, 2015.

Decided Sept. 9, 2015.

The Okey Law Firm, L.P.A., and Steven P. Okey, Canton, for relators.

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 Tiffany L. Carwile and Nicole M. Koppitch, Assistant Attorneys General, for respondent Ohio Secretary of State Jon Husted.

Craig T. Conley, for intervening respondent Francis H. Cicchinelli Jr.

PER CURIAM.

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

Background

{¶ 2} Cicchinelli has a long history as a Democratic Party candidate and officeholder in the city of Massillon. This history includes serving 14 years as a Democrat on the Massillon City Council and six terms as the Democratic mayor of Massillon.

{¶ 3} On April 29, 2015, Cicchinelli began circulating petitions to run for mayor in the November election as an independent candidate. A candidate who wishes to run as an independent must file a statement of candidacy and nominating petitions with the board of elections no later than 4:00 p.m. the day before the primary. R.C. 3513.257. Implicit in the submission of these documents is the candidate's declaration that he or she is independent; that declaration must be made in good faith. State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 17, 28 ; Morrison v. Colley, 467 F.3d 503, 509 (6th Cir.2006).

{¶ 4} Cicchinelli filed his papers, which declared his independent candidacy, on May 4, 2015. The next day, May 5, Cicchinelli cast a nonpartisan ballot in the primary election.

{¶ 5} On June 16, 2015, four protesters filed a protest of Cicchinelli's candidacy with the Stark County Board of Elections. ¹ ] The board of elections conducted a protest hearing on July 13, 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 Cicchinelli's independent candidacy for the November ballot.

{¶ 6} The two remaining protesters, relators Robert L. Richards and Melvin T. Schartiger, then filed suit in this court for a writ of prohibition to prevent Husted and the board of elections from placing Cicchinelli's name on the ballot. Cicchinelli was granted leave to intervene as a respondent and filed an answer, but he failed to file a merit brief. The case is otherwise fully briefed and ripe for decision.

Legal Analysis

{¶ 7} To prevail in their protest, the protesters had to prove by clear and convincing evidence that Cicchinelli's declaration was not made in good faith. 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, corruption, or abuse of 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.

{¶ 8} The protesters have abandoned the theories they advanced in the protest hearing. Instead, their action rests entirely on a set of responses that Cicchinelli gave when he was questioned by the protesters' attorney at the hearing:

Q. * * * Mr. Cicchinelli, could you please tell this Board of Elections, what is the date that you claim you were first an Independent?

A. Technically, it would be the May primary, when I voted non-issues—or nonpartisan ballot.

Q. That would have been—the May primary would have been, I believe, May 5th—

A. The 5th.

Q. —Tuesday, May 5th, sir?

A. Yes.

According to the protesters, Cicchinelli admitted in this exchange that he did not regard himself as an independent until May 5, 2015. From this, they conclude that his claim of independence could not have been made in good faith and therefore that Husted abused his discretion by disregarding this clear, convincing, and unrebutted evidence.

{¶ 9} We disagree. The answer was ambiguous because the question was imprecise. The protesters interpret Cicchinelli's answer as indicating the date when he first considered himself an independent, but that is not the question that was asked. Rather, the question asked Cicchinelli for "the date that you claim you were first an Independent." (Emphasis added.)

{¶ 10} And his response, that technically it was the day he voted a nonpartisan ballot, suggests that he may have understood the question in a different, more legalistic fashion. This court has noted that "[a] voter cannot register as an independent, except in the negative sense of not voting in partisan primaries or signing partisan nominating petitions." State ex rel. Coughlin v. Summit Cty. Bd. of Elections,

136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 28, fn. 2. Based on that language, one could reasonably conclude that an elector "technically" becomes an independent by the act of casting a nonpartisan primary ballot.

{¶ 11} The testimony of Joy Cicchinelli, Francis Cicchinelli's wife, is equally ambiguous and adds nothing to the analysis. Counsel for the protesters asked her, "Did you have an understanding of when it was that your husband was an Independent?" She replied, "My husband was an Independent when he, the day of the primary, became an Independent." No one asked Mrs. Cicchinelli for the basis for her "understanding" or what she thought it meant to say that her husband became an independent on a particular day.

{¶ 12} Ambiguous responses to ambiguous questions cannot constitute clear and convincing evidence. The protesters, who bore the burden of proof, could have asked Cicchinelli to explain his meaning or used the precise question to which they wanted an answer, but they chose not to do either thing. It was therefore not an abuse of discretion for the secretary of state to conclude that the protesters failed to meet their burden of proof.

{¶ 13} Alternatively, the protesters assert that Husted committed an error of law. Their argument is premised on this court's statement in Davis th...