[The State ex rel. Monroe v. Mahoning Cnty. Bd. of Elections, No. 2013–1473.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM.
Citation137 Ohio St.3d 62,997 N.E.2d 524
Docket NumberNo. 2013–1473.
Decision Date10 October 2013

137 Ohio St.3d 62
997 N.E.2d 524

[The STATE ex rel.] MONROE

No. 2013–1473.

Supreme Court of Ohio.

Submitted Oct. 8, 2013.
Decided Oct. 10, 2013.

[997 N.E.2d 525]

Cecil Monroe, pro se.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Linette M. Stratford and Gina DeGenova Bricker, Assistant Prosecuting Attorneys, for respondent.


{¶ 1} Relator, Cecil Monroe, seeks a writ of prohibition to prohibit respondent, the Mahoning County Board of Elections, from placing the name of Demaine Kitchen on the November 5, 2013 general election ballot as an independent candidate for the office of mayor of Youngstown. Monroe contends that Kitchen is actually a Democrat and that his profession of independence was not made in good faith, as required by R.C. 3513.257 and Morrison v. Colley, 467 F.3d 503 (6th Cir.2006).

{¶ 2} We find that Monroe has failed to satisfy his burden of proof and deny the writ. In addition, we deny Monroe's motion to strike the board's answer on the grounds of improper service.


{¶ 3} On May 6, 2013, Kitchen filed a nominating petition to run as an independent candidate for mayor of Youngstown. Monroe, a qualified elector, filed a written protest challenging Kitchen's candidacy.

{¶ 4} The board held a protest hearing on July 18, 2013, at which both Monroe and Kitchen testified under oath. The hearing produced the following evidence:

{¶ 5} (1) Between November 2000 and May 2013, Kitchen voted a Democratic Party ballot on five occasions: May 7, 2002; May 2, 2006; May 8, 2007; March 4, 2008; and May 5, 2009.

{¶ 6} (2) In the 2013 primary election, Kitchen voted an issues-only ballot.

[997 N.E.2d 526]

{¶ 7} (3) Kitchen served on the executive committee of the Mahoning County Democratic Party for a period of years.

{¶ 8} (4) Kitchen also represented the Second Ward on the Youngstown City Council as a Democrat.

{¶ 9} (5) When Democrat Charles Sammarone became mayor of Youngstown, he hired Kitchen as the “number-two man” in his office. Kitchen described the job as a “nonpartisan appointed position.”

{¶ 10} (6) When Kitchen accepted Mayor Sammarone's offer, he resigned from both the city council and the Democratic Party executive committee. These resignations occurred more than two years ago.

{¶ 11} (7) Kitchen testified that accepting the job with Mayor Sammarone was “not a partisan issue,” but rather “an issue of providing and taking care of my family.”

{¶ 12} (8) Monroe testified that Kitchen had stated, as quoted in an article in a local newspaper, that “[i]t was more strategic to run as an independent” and that he “didn't want to saturate the primary.”

{¶ 13} (9) When directly asked why he chose to leave the Democratic Party and declare himself an independent candidate, Kitchen expressed his belief that voters were frustrated with “the constant accusations and things” that arise with the two-party system. He went on to say that

“the fact that I'm running as an independent is a reflection of my ideology * * *, there are things I would agree with with the Democratic party. There are things I would agree with, I'm sure, with the Republican party. But my decision to run as an independent was truly because I feel that I am an independent as it relates to my world view.”

{¶ 14} At the end of the hearing, the board voted to deny the protest.

Procedural history

{¶ 15} Monroe filed this original action on September 16, 2013, and the board filed an answer on September 23, 2013. Monroe filed a motion to strike the board's answer on September 26, 2013, and the board filed a memorandum in opposition the next day, September 27, 2013. Pursuant to the accelerated schedule for expedited election cases set forth in S.Ct.Prac.R. 12.08(A)(2), Monroe filed his merit brief and evidence on September 26, 2013, the board filed its merit brief and evidence on September 30, 2013, and Monroe filed a reply brief on October 3, 2013. This cause is now before the court for consideration of the merits.

The motion to strike

{¶ 16} Parties in expedited election cases must serve all documents upon the other parties by personal service, facsimile transmission, or e-mail. S.Ct.Prac.R. 12.08(C). The board admits that it served its answer on Monroe by ordinary mail only. On September 26, 2013, Monroe filed a motion to strike the board's answer.

{¶ 17} S.Ct.Prac.R. 3.11(D)(2) permits the court to deny a motion to strike an improperly served pleading when the complaining party has not been adversely affected. Even in expedited election cases, a party seeking to have a...

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