State ex rel. Weller v. Tuscarawas Cnty. Bd. of Elections
| Decision Date | 18 October 2019 |
| Docket Number | No. 2019-1348,2019-1348 |
| Citation | 2019 Ohio 4300,141 N.E.3d 157,158 Ohio St.3d 266 |
| Parties | The STATE EX REL. WELLER, Appellant, v. TUSCARAWAS COUNTY BOARD OF ELECTIONS, Appellee. |
| Court | Ohio Supreme Court |
Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Tonya J. Rogers, North Canton, for appellant.
Ryan D. Styer, Tuscarawas County Prosecuting Attorney, and Robert R. Stephenson II, Assistant Prosecuting Attorney, for appellee.
{¶ 1} Appellant, Clayton Weller, appeals the Fifth District Court of Appeals' judgment denying his request for a writ of mandamus ordering appellee, the Tuscarawas County Board of Elections, to certify Weller's name to the November 2019 ballot as a candidate for mayor of the village of Sugarcreek. We affirm the Fifth District's judgment.
{¶ 2} On June 21, 2019, Weller submitted his petition to the board. The petition was comprised of four part-petitions, all on Form No. 3-O, which is the form that the secretary of state has prescribed for candidates running for nonpartisan municipal offices. On each part-petition, Weller completed the statement-of-candidacy portion and the circulator-statement portion, but he left blank the nominating-petition portion, which precedes the lines on which electors place their signatures and states:
We, the undersigned, qualified electors of the State of Ohio, whose voting residence is in the county, city, village, or township set opposite our names, hereby nominate [NAME OF CANDIDATE] as a candidate for election to the office of [OFFICE] in the City or Village of [NAME OF CITY OR VILLAGE] for the: [CHECK ONE] * * * full term or * * * unexpired term ending [unexpired term ending date], to be voted for at the next general election, and certify said person is, in our opinion, well qualified to perform the duties of the office or position to which the person desires to be elected.
On August 19, the board rejected Weller's petition because he had not completed the nominating-petition portions of the Form No. 3-O part-petitions.
{¶ 3} On September 9, Weller filed a complaint in the Fifth District seeking a writ of mandamus ordering the board to certify his name to the November ballot. 2019-Ohio-4032, 2019 WL 4849354, ¶ 1. Weller argued that (1) he had completed the statement-of-candidacy portions of his part-petitions and that the information omitted from the nominating-petition portion of Form No. 3-O is merely duplicative of the information in the statement-of-candidacy portion and (2) there was no strict requirement that he fill in the blanks in that portion of the Form No. 3-O and therefore, by completing the statement of candidacy, his petition substantially complied with R.C. 3513.261. Id. at ¶ 6, 8.
{¶ 4} On September 30, the Fifth District denied the writ based on its conclusion that Weller's petition did not substantially comply with R.C. 3513.261. Id. at ¶ 14, 16. The court reasoned that Weller's failure to complete the nominating-petition portion of Form No. 3-O "does not relate merely to the ‘form’ of the nominating petition, but goes to its very substance," id. at ¶ 12, and that Weller's omissions essentially "resulted in the signators nominating nobody as a candidate," id. at ¶ 10.
{¶ 5} Weller filed a notice of appeal on October 3. He also filed a motion to expedite, which we granted. 157 Ohio St.3d 1431, 2019-Ohio-4095, 132 N.E.3d 688.
{¶ 6} Weller is entitled to a writ of mandamus if he establishes by clear and convincing evidence that (1) he has a clear legal right to have his name placed on the ballot, (2) the board has a clear legal duty to place his name on the ballot, and (3) he lacks an adequate remedy in the ordinary course of the law. State ex rel. Davis v. Summit Cty. Bd. of Elections , 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 12. Because of the proximity of the November election, Weller lacks an adequate remedy in the ordinary course of the law. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections , 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18.
{¶ 7} With respect to the remaining elements, courts look to whether the board has "engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions."
Whitman v. Hamilton Cty. Bd. of Elections , 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Weller does not allege fraud or corruption, so the question is whether the board abused its discretion or clearly disregarded applicable law. A board abuses its discretion when it acts in an "unreasonable, arbitrary, or unconscionable fashion." State ex rel. McCann v. Delaware Cty. Bd. of Elections , 155 Ohio St.3d 14, 2018-Ohio-3342, 118 N.E.3d 224, ¶ 12.
{¶ 8} "[T]he general rule is that unless there is language allowing substantial compliance, election statutes are mandatory and must be strictly complied with." State ex rel. Husted v. Brunner , 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 15.
{¶ 9} R.C. 3513.251 states, "Nomination of nonpartisan candidates for election as officers of a municipal corporation having a population of two thousand or more, as ascertained by the next preceding federal census, shall be made only by nominating petition ." (Emphasis added.)1 R.C. 3513.251 does not contain language permitting substantial compliance. It therefore imposes a mandatory, strict requirement that Weller's nomination as a candidate for election as mayor of Sugarcreek be made by nominating petition.
{¶ 10} R.C. 3513.261 provides that nominating petitions "shall be substantially in the form prescribed in this section." (Emphasis added.) Thus, the statute "requires only substantial compliance with the prescribed ‘form’ of the nominating petition, but [it] contains no language regarding substantial compliance as to other matters." State ex rel. Simonetti v. Summit Cty. Bd. of Elections , 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 26.
{¶ 11} Weller was therefore required to strictly comply with the requirement that his nomination to office be achieved by nominating petition and to substantially comply with the statutory form of the nominating petition. The parties appear to have overlooked R.C. 3513.251 ; they have briefed only the question whether Weller substantially complied with R.C. 3513.261. We agree with the Fifth District that Weller's submission of part-petitions on which he did not complete the nominating-petition portions of Form No. 3-O constituted a failure to substantially comply with R.C. 3513.261. Under the facts of this case, in which Weller used the form prescribed by the secretary under R.C. 3513.261, his failure to substantially comply with R.C. 3513.261 means that he has also failed to strictly comply with R.C. 3513.251.
{¶ 12} In State ex rel. Allen v. Lake Cty. Bd. of Elections , 170 Ohio St. 19, 161 N.E.2d 896 (1959), the relator had submitted four part-petitions with invalid circulator's affidavits.2 Id. at 20, 161 N.E.2d 896. The relator argued that "since the only requirement for a circulator's affidavit appears in the statutory form and * * * the statute requires only that a nominating petition form shall be substantially the same as the statutory form, the circulator's oath is not an essential part of the petition paper." (Emphasis sic.) Id. This court rejected that argument, stating, "Substantial compliance does not contemplate complete omission." Id. The court further explained:
The statutory form, like any suggested statutory form, need not be followed absolutely as to its wording. The statute [prescribing the form] itself provides for only substantial compliance. However, as we have said, substantial compliance would not warrant complete omission of the jurat of the circulator. Such jurat is a vital and material part of the nominating petition paper , and its inclusion is a condition precedent to the acceptance and validation of a candidate's nominating petition paper by a board of elections.
Id. (Emphasis added.)
{¶ 13} In State ex rel. Wilson v. Hisrich , 69 Ohio St.3d 13, 630 N.E.2d 319 (1994), the relator had filed one part-petition that contained a declaration of candidacy and had attached to it three additional part-petitions that did not contain declarations of candidacy. Id. at 15, 630 N.E.2d 319. This court held that this violated R.C. 3513.09's strict requirement that the signed declaration of candidacy "shall be copied on each other separate petition paper." Wilson at 15-16, 630 N.E.2d 319. The relator argued that R.C. 3513.07, which prescribed the applicable petition form, required only substantial compliance and that he had met that requirement in light of affidavits from all of the signers of his petition averring that they were shown the declaration of candidacy when they signed the part-petitions. Id. at 16, 630 N.E.2d 319. This court disagreed, explaining, " R.C. 3513.07 may be satisfied by substantial compliance with the form of a declaration of candidacy and petition, but the omission of the entire declaration from three petition papers would hardly qualify as substantial compliance." Id.
{¶ 14} Weller points out that he completed the statement-of-candidacy portions of his part-petitions and that all the information that he would have added to the nominating-petition portion of Form No. 3-O was included in his statement of candidacy on the same form. However, it is apparent from the language and structure of R.C. 3513.261 and the form of the "nominating petition and statement of candidacy" set forth therein that the nominating petition and the statement of candidacy are different components of a part-petition that serve different purposes. (Emphasis added.) In the statement of candidacy, the candidate declares to the petition signers his intention to seek a particular office and attests to his qualifications. Id. (...
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...language suggesting that something less than strict compliance will suffice. Compare State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections , 158 Ohio St.3d 266, 2019-Ohio-4300, 141 N.E.3d 157, ¶ 10, quoting R.C. 3513.261 (statutory language stating that nominating petitions "shall be sub......