State ex rel. Squire v. Taft

• Decision Date: 29 April 1994
• Docket Number: No. 94-674,94-674
• Citation: 632 N.E.2d 883,69 Ohio St.3d 365
• Parties: The STATE ex rel. SQUIRE v. TAFT, Secretary of State.
• Court: Ohio Supreme Court

Page 365

69 Ohio St.3d 365

632 N.E.2d 883

The STATE ex rel. SQUIRE v. TAFT, Secretary of State.

No. 94-674.

Supreme Court of Ohio.

Submitted and Decided April 29, 1994.

On February 16, 1994, George M. McKelvey, the Mahoning County Treasurer, filed with respondent, Bob Taft, Secretary of State, a declaration of candidacy and petition papers to be a candidate for the nomination as the Democratic Party candidate for State Treasurer. The petitions contained over two thousand signatures, 1,891 of which were validated. One thousand valid signatures are required to become a candidate. R.C. 3513.05.

On February 28, 1994, relator, Percy Squire, filed a written protest with respondent against McKelvey's candidacy. The written protest alleged that McKelvey had not personally witnessed the affixing of the seven hundred eighty-six signatures on the thirty-seven part-petitions he signed as circulator. It also requested respondent to issue a subpoena duces tecum for payroll and attendance records for the Mahoning County Treasurer's Office from February 7 to February 15, 1994 and McKelvey's "personal calendar, schedule, daytime or other record of activities" for the same period. The written protest also requested the issuance of a limited number of subpoenas to conduct discovery before the protest hearing.

On March 1, 1994, John F. Bender, respondent's chief elections counsel, contacted relator. Relator alleges, but respondent denies, that Bender questioned relator's protest, stating that even if McKelvey had committed election falsification with respect to all seven hundred eighty-six signatures challenged, he would still have enough valid signatures to get on the ballot. By letter dated March 3, 1994, respondent notified relator that, pursuant to R.C. 3513.05, his protest hearing would be held on March 10, 1994, and that Bender would conduct the hearing.

By affidavit dated March 8, 1994, relator renewed his previous requests for discovery and the issuance of subpoenas specified in his February 28, 1994 protest letter. Relator also submitted the names and addresses of eleven signers of McKelvey's petitions who, he alleged, had stated that someone other than McKelvey circulated the petitions they signed. He also challenged three hundred seventy-five additional signatures on part-petitions circulated by two other circulators, and requested that Bender be removed as hearing officer.

By letter dated March 9, 1994, respondent informed relator that:

"While I have the authority to issue subpoenas to compel the attendance of witnesses or to produce documents under R.C. 3501.05, I believe that authority should be exercised on a showing of good cause and in the absence of other alternative means of obtaining the desired testimony or information. Therefore, I believe that the decision on whether to issue the subpoenas requested should be reserved until after both parties have had a full opportunity to present arguments on the necessity for such subpoenas. I will promptly issue subpoenas, if as a result of these arguments a need is demonstrated."

Respondent further appointed Deputy Chief Elections Counsel Richard A. Whitehouse to act as hearing officer instead of Bender to avoid any appearance of impropriety.

Following an evidentiary hearing on March 10, 1994, the hearing officer found that relator "failed to present sufficient evidence to support his protest or cause this office to initiate its own investigation."

On March 17, 1994, based on the hearing officer's recommendation, respondent overruled the protest. On March 24, 1994, relator requested reconsideration. By letter dated March 29, 1994, respondent denied relator's request for reconsideration.

Also on March 29, respondent filed a letter from relator entitled "Reply to George McKelvey's Brief in Opposition and Memorandum in Opposition to Motion to Strike." Among other things, the letter referred to a tape recording and transcript that show McKelvey did not circulate petition 2013, even though he signed as circulator. Relator has submitted the tape and a transcript as evidence in this case.

On March 31, 1994, relator filed this mandamus action seeking to compel respondent to investigate election falsification by McKelvey, to issue the discovery process and subpoenas requested by relator, and to reopen the protest hearing. However, the complaint did not request the court to prevent McKelvey's name from appearing on the ballot.

On April 18, 1994, McKelvey filed a motion to quash a subpoena duces tecum, attaching thereto a notice of deposition duces tecum and subpoena whereby relator demanded to take McKelvey's deposition in Youngstown at 1:00 p.m., April 20, 1994. The notice/subpoena also required McKelvey to bring the same records that respondent had refused to issue the subpoena for prior to, during, and after the protest hearing. On April 20, this court granted the motion to quash. On April 25, relator filed a motion for rehearing and immediate oral argument.

Percy Squire, pro se.

Lee Fisher, Atty. Gen., Andrew S. Bergman, and Andrew I. Sutter, Asst. Attys. Gen., for respondent.

PER CURIAM.

For the following reasons, we deny relator's motion for rehearing on the motion to quash, and we deny the writ.

Relator sets forth two propositions of law:

"[1.] Ohio Revised Code Section 3501.05 imposes an affirmative duty upon the Secretary of State to investigate election fraud and report violations of election laws to the attorney general and prosecuting attorney for the county where the fraud occurred or both."

"[2.] A declaration of candidacy and petition shall be determined invalid and rejected upon a finding by the Secretary of State that a candidate has engaged in fraud as to a material matter relating to his declaration of candidacy, notwithstanding that the candidate may have otherwise accumulated the statutory minimum number of signatures."

Regarding the first proposition of law, respondent's duty to "investigate election fraud" stems from R.C. 3501.05(N), which states:

"The secretary of state shall:

" * * *

"(N) Investigate the administration of election laws, frauds, and irregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution[.]"

R.C. 3501.05 also states:

"In the performance of his duties as the chief election officer, the secretary of state may administer oaths, issue subpoenas, summon witnesses, compel the production of books, papers, records, and other evidence and fix the time and place for hearing any matters relating to the administration and enforcement of the election laws." (Emphasis added.)

The duty to investigate under R.C....