State v. Cuyahoga Cnty. Bd. of Elections
| Decision Date | 22 March 2018 |
| Docket Number | No. 106932,106932 |
| Parties | STATE OF OHIO, EX REL. MICHAEL O'NEIL, ET AL. RELATORS v. THE CUYAHOGA COUNTY BOARD OF ELECTIONS RESPONDENT |
| Court | Ohio Court of Appeals |
Writ of Mandamus
Michael J. O'Shea
O'Shea & Associates Co., L.P.A.
The Hoyt Block Building
700 West St. Clair Avenue, Suite 110
Cleveland, Ohio 44113
Robert J. Triozzi
Director of Law, Cuyahoga County
2079 East Ninth Street
Cleveland, Ohio 44115
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Brendan R. Doyle
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} The relators, Michael O'Neil ("O'Neil"), James Shannon ("Shannon"), and Brigid Talty ("Talty") seek a writ of mandamus in order to compel respondent, Cuyahoga County Board of Elections ("board"), to place their names on the May 8, 2018 primary election ballot as candidates for the Cuyahoga County Democratic Central Committee. In the alternative, the relators seek a writ of mandamus to compel the board to accept each relator as a write-in candidate for the May 8, 2018 primary election. For the following reasons, we decline to issue a writ of mandamus as to either issue.
{¶2} On February 7, 2018, each relator filed with the board a separate nominating petition ("petition") in order to be placed on the May 8, 2018 primary election ballot as a candidate for the Cuyahoga County Democratic Central Committee. O'Neil sought nomination as a candidate for the Cuyahoga County Democratic Central Committee for the municipality of Rocky River, Ward 3, Precinct B. Shannon sought nomination as a candidate for the Cuyahoga County Democratic Central Committee for the municipality of Rocky River, Ward 3, Precinct C. Talty sought nomination as a candidate for the Cuyahoga County Democratic Central Committee for the municipality of Rocky River, Ward 2, Precinct A.
{¶3} In accordance with R.C. 3501.11(K)(1), the board reviewed the petitions to determine their validity. After review, it was determined that all three of the petitions were defective because the declarations of candidacy were all signed and dated after the electors signed and dated the petitions, a violation of R.C. 3513.261. The relators were notified by email or phone that their petitions were defective.
{¶4} On February 12, 2018, an employee of the board, Cory Milne, spoke with the relators' attorney, Michael O'Shea, at which time Milne indicated that the relators' petitions were fatally defective. Milne indicated that each relator could withdraw his or her candidacy in order to be eligible to file as a write-in candidate for the same position.
{¶5} On February 15, 2018, the board held a meeting, at 9:30 a.m., at which time it certified candidates to the ballot for the primary election of May 8, 2018. The date and time of the board meeting, and the purpose of the board meeting, were publicly noticed. The board, at the meeting, disqualified the relators' petitions. The relators did not attend the board meeting. On February 15, 2018, at 3:40 p.m., O'Neil filed, by email, his notice of withdrawal of candidacy from the May 8, 2018 primary election for the officeof Cuyahoga County Democratic Central Committee Member. Shannon and Talty never filed a notice of withdrawal of candidacy with the board. On February 20, 2018, the board received, via messenger, "Declaration of Intent to be a Write-in Candidate" ('write-in declaration") for the May 8, 2018 primary election from O'Neil and Shannon. No write-in declaration was received from Talty. The Board did not accept the "Declaration of Intent to be a Write-in Candidate" filed by O'Neil and Shannon. On March 19, 2018, the relators filed this complaint for a writ of mandamus.
{¶6} In order for this court to issue a writ of mandamus, the relators must demonstrate, by clear and convincing evidence, that they possess a clear legal right to the requested relief, that the respondent possesses a clear legal duty to provide the requested relief, and there exists no other adequate remedy in the ordinary course of the law.1 State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940; State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).
{¶7} Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and issued only when the right and duty is absolutely clear. Mandamus will not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist. 1993); State exrel. Dayton-Oakwood Press v. Dissinger, 32 Ohio Law Abs. 308, 1940 Ohio App. LEXIS 1173 (1940).
{¶8} The Supreme Court of Ohio has also established that the facts submitted in support of the complaint for mandamus and the proof produced must be plain, clear and convincing before a court is justified in using the "strong arm of the law" by way of granting a writ of mandamus. State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967).
{¶9} In addition to the three-part test that must be applied to a complaint for a writ of mandamus, the Supreme Court of Ohio has established that "[i]n extraordinary actions challenging the decisions of the Secretary of State and boards of elections, the standard is whether they 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.
{¶10} Herein, the relators have not alleged fraud or corruption on the part of board. Thus, the issues before this court are whether the board abused its discretion or clearly disregarded applicable law by: 1) holding that the relators' petitions were fatally defective; and 2) rejecting the relators' requests for write-in candidacy.
{¶11} The relators, through their initial argument for a writ of mandamus, argue that the petitions submitted to the board contained a simple technical defect that did not result in a fatal flaw that prevented their names from being placed on the May 8, 2018 primary election ballot.
{¶12} On February 7, 2018, the relators filed their petitions to run as candidates for the Democratic Party County Central Committee. O'Neil signed and dated his petition on February5, 2018, but all of his elector signatures were dated February 4, 2018; Shannon signed and dated his petition on February 3, 2018, but all of his elector signatures were dated between January 24, 2018, and January 30, 2018; and Talty signed and dated her petition on February 2, 2018, but nine out of ten of her elector signatures were dated between January 24, 2018, and February 2, 2018. The board rejected each petition, as fatally flawed, because each relator failed to sign and date their respective circulated petition before the signatures of the electors were placed on the petitions. The relators argue that their failure to sign and date the petitions prior to circulation constituted a simple technical defect that did not result in a fatal flaw that prevented the board from placing the relators as candidates for the Democratic Party County Central Committee on the May 8, 2018 primary election ballot. We disagree.
{¶13} The Supreme Court of Ohio, in State ex rel. Simonetti v. Summit Cty. Bd. Of Elections, 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, held that a candidate is required to sign the statement of candidacy on the petition before collecting signatures from electors, per R.C. 3513.261, and the failure to sign the statement of candidacy prior to collecting signatures from electors results in a fatal flaw that mandates invalidation of the nominating petition. The Supreme Court of Ohio also held that substantial compliance with the signature and date requirements of R.C. 3513.261 will not allow acceptance of a defective petition by a board.
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