State, ex rel. Shumate v. Portage Cty. Bd. of Elections
| Decision Date | 20 May 1992 |
| Docket Number | No. 92-508,92-508 |
| Citation | 64 Ohio St.3d 12,591 N.E.2d 1194 |
| Parties | The STATE, ex rel. SHUMATE, v. PORTAGE COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
In Prohibition. 1
On January 17, 1992 and February 20, 1992, respectively, P. Ken Howe and J.D. Wilkins filed declarations of candidacy for the Democratic Party nomination for the office of Sheriff of Portage County. Howe is the incumbent sheriff; Wilkins was formerly the sheriff.
In a letter dated February 28, 1992, relator, Donald L. Shumate, filed a protest with respondent, the Portage County Board of Elections. The letter of protest charged that Howe did not have five years of full-time law enforcement experience, as required by R.C. 311.01(B)(9). 2
In a letter dated March 2, 1992, Oscar A. Whittington filed a letter of protest with respondent charging that Howe failed to meet R.C. 311.01(B)(8)'s requirement of holding a valid certificate of training as a law enforcement officer within three years of the filing deadline for the declaration of candidacy, that Howe failed to meet the five years' experience requirement of R.C. 311.01(B)(9), and that Wilkins failed to meet the training requirement of R.C. 311.01(B)(8).
On March 9, 1992, respondent held a hearing on the protests. Relying on advice of its counsel and 1990 Ohio Atty.Gen.Ops. No. 90-112, respondent found that Howe was exempt from the five years' experience requirement by virtue of Section 3 of Am.Sub.H.B. No. 683 of the 116th General Assembly, effective March 11, 1987 (141 Ohio Laws, Part III, 5503, 5509), discussed infra, and denied relator's protest. Respondent also denied Whittington's protest against both candidates because it found that Whittington was not a registered Democrat and was therefore ineligible to file a protest pursuant to R.C. 3513.05. 3 Relator then filed this action in prohibition to restrain respondent from placing the names of Howe and Wilkins on the primary ballot, alleging that Howe fails to meet the requirements of R.C. 311.01(B)(7) AND (9)4, and that Wilkins fails to meet the requirements of R.C. 311.01(B)(5) AND (7)5. Respondent has filed a motion to dismiss or, alternatively, for summary judgment.
Willis & Linnen Co., L.P.A., and Jerome T. Linnen, Jr., for relator.
David W. Norris, Pros. Atty. and Kent M. Graham, for respondent.
For the following reasons we grant a writ of prohibition and order respondent not to place Howe's name on the Democratic primary ballot for the June 2, 1992 election. Respondent's motion for summary judgment is granted as it pertains to Wilkins and, in part, as it pertains to Howe.
R.C. 3501.11 requires boards of elections to review, examine and certify the sufficiency and validity of petitions and nominating papers. R.C. 3513.05 provides for protests of declarations of candidacy filed in primary elections and declares that the decision of a board of elections as to a protest is final. In State, ex rel. Flynn, v. Bd. of Elections of Cuyahoga Cty. (1955), 164 Ohio St. 193, 57 O.O. 402, 129 N.E.2d 623, paragraph one of the syllabus, overruled on other grounds, State, ex rel. Schenck, v. Shattuck (1982), 1 Ohio St.3d 272, 1 OBR 382, 439 N.E.2d 891, we held that the decision of a board of elections in such a case was not subject to judicial review except for "allegations of fraud, corruption, abuse of discretion or a clear disregard of statutes or legal provisions * * *." Moreover, in Maranze v. Montgomery Cty. Bd. of Elections (1958), 167 Ohio St. 323, 4 O.O.2d 401, 148 N.E.2d 229, and State, ex rel. Lippitt, v. Cuyahoga Cty. Bd. of Elections (1978), 56 Ohio St.2d 70, 10 O.O.3d 143, 381 N.E.2d 1129, we held that a statutory protest is an adequate remedy that will preclude issuance of an extraordinary writ. Therefore, a relator must file a protest on relevant issues before bringing an action for an extraordinary writ based on those issues. By filing a protest, a relator avoids the charge that he or she has bypassed an adequate legal remedy. Bringing the issues before the board establishes a record from which the court, in a later action for an extraordinary writ, may judge whether the board was affected by fraud or corruption, abused its discretion, or clearly disregarded statutes or other legal provisions. Without the record, there is no basis for a court to decide these issues.
In this case, relator did not protest Wilkins's candidacy. Moreover, the issues on which he now challenges Wilkins's candidacy were not raised by Whittington when he protested Wilkins's candidacy before respondent. Accordingly, relator had an adequate remedy at law that he failed to pursue and, consequently, failed to establish a record on which this court may base a decision. Similarly, relator now challenges Howe for not complying with R.C. 311.01(B)(7). However, he failed to raise this issue as part of his protest against Howe's candidacy and so failed to pursue an adequate legal remedy and establish a record on this issue. Accordingly, we grant respondent's motion for summary judgment with respect to Wilkins and with respect to Howe as to any R.C. 311.01(B)(7) issue.
Relator did protest the issue of Howe's lack of five years of full-time experience pursuant to R.C. 311.01(B)(9), and he raises the same issue in this action. He asserts that respondent has a mandatory duty to apply R.C. 311.01(B)'s qualifications via R.C. 3501.11(J) and (K). Respondent denies this. It claims that the administrative judge of the court of common pleas has that duty and that it may rely on the findings of the administrative judge, citing former Directive No. 87-23 of the Secretary of State. Respondent then asserts that the administrative judge and Secretary of State are necessary parties that have not been joined.
R.C. 3501.11 states in part:
R.C. 3501.38 prescribes certain technical rules concerning declaration of candidacy and nominating petitions.
R.C. 3501.39 then provides in part:
In Flynn, supra, we held that a board of elections had authority to rule on R.C. 1901.06's experience requirement for judicial candidates. The requirement of R.C. 1901.06 is not different in kind from the requirements of R.C. 311.01(B) at issue here. Both statutes are outside the elections law, and both deal with substantive issues of eligibility for candidacy other than technical declaration or petition requirements. In Flynn, we reasoned that R.C. 3501.11(K) and certain language about protests in R.C. 3513.262 conferred authority on the board to judge the experience requirements, particularly in light of certain precedent, stating:
164 Ohio St. at 200, 57 O.O. at 406, 129 N.E.2d at 627.
R.C. 3513.05, not R.C. 3513.262, contains the protest language applicable to this election for sheriff. It, too, states, in part, that "[a]t the time fixed [for a protest hearing] such election officials shall hear the protest and determine the validity or invalidity of the declaration of candidacy and petition." Moreover, R.C. 3501.39(C) clearly implies that the board should not approve a petition if the candidacy violates the election law "or any other requirements established by law." Accordingly, we hold that respondent has not only the authority to review R.C. 311.01(B)'s qualification requirements for the office of sheriff, but also the duty to do so whenever those qualifications are challenged in a protest.
We also reject respondent's argument that the administrative judge has primary authority to judge the qualifications of candidates for sheriff and that it could rely on the judge's findings without abusing its discretion or clearly disregarding the statute. In this case, the administrative judges of the Portage County Court of Common Pleas respectively certified their findings in 1991 for Howe and in 1992 for Wilkins that each was an eligible candidate with regard to the qualifications set forth in R.C. 311.01(B)(1), (2), (3), (4), (5), and (9). R.C. 311.01(B)(6) requires candidates to submit to a national, state, and local search of fingerprint files "to disclose any criminal record." Fingerprinting is to be under the direction of the administrative judge, who must "notify the board * * * of his findings." Although the statute uses the term "findings," there is nothing to "find" except that the candidate or potential appointee does or does not have a criminal record. Presumably, these results will be used to determine whether the candidate or potential appointee is disqualified under R.C. 311.01(B)(5) by having been convicted of a felony, crime involving moral turpitude, or first degree misdemeanor, but neither division (B)(5) nor (B)(6) calls upon the administrative judge to make that determination.
Similarly, R.C. 311.01(B)(7)...
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