State ex rel. v. Brunner

• Decision Date: 16 June 2008
• Docket Number: No. 2008-0478.,2008-0478.
• Parties: The STATE ex rel. SUMMIT COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE v. BRUNNER, Secy. of State.
• Court: Ohio Supreme Court

890 N.E.2d 888

118 Ohio St.3d 515

2008-Ohio-2824

The STATE ex rel. SUMMIT COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE v. BRUNNER, Secy. of State.

No. 2008-0478.

Supreme Court of Ohio.

Submitted April 22, 2008.

Decided June 16, 2008.

Grendell & Simon Co., L.P.A., and Timothy J. Grendell, for relator.

Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Pearl M. Chin, and Michael J. Schuler, Assistant Attorneys General, for respondent.

PER CURIAM.

I

{¶ 1} This is an original action for various extraordinary writs to (1) compel respondent, Secretary of State Jennifer Brunner ("Secretary"), to appoint Brian K. Daley to the Summit County Board of Elections as recommended by relator, Summit County Republican Party Executive Committee ("Committee"), (2) reject the Secretary's appointment of Donald Varian to serve on the board of elections, and (3) vacate all three-to-one board decisions in which Varian voted with the majority of the board.

{¶ 2} The statutory framework establishes a bipartisan composition of the state's boards of elections, which provides county executive committees of the two major political parties with the right to recommend appointees who shall be appointed by the secretary of state. The Secretary may reject the recommended appointee if she has reason to believe that the elector would not be a competent member of the board.

First Recommendation

{¶ 3} Alex R. Arshinkoff is the chairman of the Committee and was a member of the Summit County Board of Elections from 1978 through February 29, 2008.

{¶ 4} At a meeting held on January 29, 2008, the Committee recommended that Secretary of State Brunner reappoint Arshinkoff to the board of elections for the four-year term beginning March 1, 2008. The Committee submitted to the Secretary on January 30 its recommendation and resolution authorizing the recommendation.

{¶ 5} Before January 30, Wayne Jones, a member of the board of elections and the finance chairman of the Summit County Democratic Party, advised the Secretary that there were problems at the board and that she should not reappoint Arshinkoff to the board. The Secretary told Jones that she could not simply reject the recommendation to reappoint and that if there was evidence concerning Arshinkoff, Jones would have to send it to her.

{¶ 6} James J. Hardy is a regional liaison for the Secretary, and in that capacity, he serves as the Secretary's representative to several boards of elections, including the Summit County Board of Elections. Jones gave Hardy a packet of information concerning Arshinkoff that Hardy mailed to the Secretary's office. The packet included an anonymous, unsigned letter stating that Arshinkoff was not competent to serve as a board member and requesting that the Secretary not appoint him, as well as numerous exhibits referred to in the letter, including news articles, letters, affidavits, and a police report.

{¶ 7} By letter dated February 20, 2008, the Secretary rejected the Committee's recommendation of Arshinkoff for appointment to the board of elections. R.C. 3501.07 requires that the Secretary provide written reasons for rejecting a committee's recommendation, and in her letter, the Secretary concluded that Arshinkoff was not competent to continue in his position as board member because he had not demonstrated a temperament suited to competent service as a board of elections member, he had fostered a partisan atmosphere at the board, and he had attempted to intimidate judges and interfere with their official duties.

{¶ 8} The Secretary noted that the Committee could submit a recommendation for another elector for appointment to the board of elections but that it would have to do so by the close of business on February 29 because the Secretary had to make the appointment on March 1.

Second Recommendation

{¶ 9} On February 26, 2008, the Committee held a meeting to consider its response to the Secretary's refusal to reappoint Arshinkoff to the board of elections. After the meeting, the Committee recommended to the Secretary that she appoint Brian K. Daley to the board of elections. Daley is a college graduate with a degree in business administration and a certified internal auditor who has served several years in various managerial positions with different companies, including employment as the finance director for TRW Steering Wheel Systems, N.A., and as the controller for Gimbel's Department Stores. He also served as a member of the Hudson City Council from 2004 to 2007 and was president of the council from 2006 through 2007.

{¶ 10} At a voter forum in Summit County on February 27, Wayne Jones told the Secretary that she should reject Daley for some of the same reasons that she had rejected Arshinkoff. At the same forum, Hudson City Council President Mike Moran, a member of the Democratic Party, told the Secretary that he had served on the council with Daley and that he had information that indicated that appointing Daley to the board would not remedy the problems she had previously detailed concerning Arshinkoff's tenure on the board.

{¶ 11} Hardy, the Secretary's regional liaison, received information about Daley from Moran and Daley's neighbors, Debra and William Vagas, as well as from other individuals. Hardy forwarded this information to the Secretary's office, and the Secretary reviewed it along with the materials submitted by the Committee and Daley. The evidence that the Secretary reviewed included an October 29, 2007 newspaper editorial endorsing Daley's opponent in a November 2007 city council race and a February 28, 2008 e-mail concerning Daley sent by Moran to Hardy.

{¶ 12} In a February 29, 2008 letter, the Secretary rejected the Committee's recommendation that Daley be appointed to the board of elections. The Secretary concluded that Daley would not be a competent board member because he did not possess the proper temperament, and his past behavior indicated that he would foster an unproductive work environment.

Appointment of Donald Varian

{¶ 13} In the same letter in which she rejected the Committee's recommendation of Daley, the Secretary appointed Donald Varian to the board of elections for the four-year term beginning March 1, 2008. Varian is an attorney and a member of the Summit County Republican Party Central Committee. Varian has been a Republican and has participated in Republican Party activities and organizations for over 40 years.

{¶ 14} The Secretary admitted receiving Varian's name from Wayne Jones at the February 27 voter forum in response to her question about other viable Republican candidates if Daley was not an appropriate appointee. David M. Farrell, the Secretary's director of elections, then contacted Varian and asked him whether he was interested in serving on the board of elections. After Varian indicated his interest, Farrell asked him a series of questions based on the Secretary's questionnaire for prospective elections board members. Farrell then reported back to the Secretary about Varian, and the Secretary appointed him on February 29.

Extraordinary-Writ Case

{¶ 15} On March 4, 2008, the Committee filed this action for (1) a writ of mandamus to compel the Secretary to appoint Daley to the board of elections as recommended by the Committee and to reject the Secretary's appointment of Varian to serve on the board of elections, (2) a writ of prohibition to prevent the Secretary from appointing Varian to serve on the board of elections, (3) a peremptory other writ to stay the Secretary's appointment of Varian pending the adjudication of this case, and (4) an alternative writ finding that the Secretary lacked authority to reject the Committee's recommendation of Daley and to appoint Varian.

{¶ 16} The Committee captioned this case as an expedited election case under S.Ct.Prac.R. X(9) and filed a motion for the issuance of an emergency writ, stay, or other immediate relief. On that same day, we denied the motion and noted that this is not an expedited election case. State ex rel. Summit Cty. Republican Party Executive Commt. v. Brunner, 117 Ohio St.3d 1207, 2008-Ohio-904, 882 N.E.2d 918. We did, however, issue an abbreviated schedule for the presentation of evidence and briefs. Id. at ¶ 5. We subsequently denied the Secretary's motion for a protective order, motion in limine, and motion to require the Committee to file a videotaped deposition of the Secretary under seal.

{¶ 17} On March 5, the board of elections conducted an organizational meeting at which the newly formed board terminated the employment of seven employees. See, e.g., R.C. 3501.09, providing that biennially, within five days after appointments to the board of elections are made by the secretary of state, the board shall meet and organize.

{¶ 18} The parties have submitted their evidence and briefs.

{¶ 19} This cause is now before us for our consideration of the merits.

II

{¶ 20} For reasons expressed in the concurring opinions, the court grants the writ of mandamus to compel the Secretary to appoint Daley to the board of elections in place of Varian. This renders moot the Committee's additional claims for a writ of mandamus to compel the Secretary to reject the appointment of Varian and for a writ of prohibition to prevent the Secretary from appointing Varian.

Other Writ and Alternative Writ

{¶ 21} The court also denies the Committee's requests for an emergency other writ and an alternative writ pending the adjudication of this case. This case has now been resolved, and the court previously denied the Committee's motion for this relief.

{¶ 22} The Committee is also not entitled to writs to vacate certain decisions in which Varian participated, because he was at least a de facto officer while serving on the board, and his actions, when questioned collaterally, are as binding as those of an officer de jure. In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 14, quoting Ex Parte Strang (1871...