Wellington v. Mahoning Cty. Bd.
| Citation | 882 N.E.2d 420,2008 Ohio 554,117 Ohio St.3d 143 |
| Decision Date | 14 February 2008 |
| Docket Number | No. 2008-0157.,2008-0157. |
| Parties | WELLINGTON v. MAHONING COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
Porter, Wright, Morris & Arthur, L.L.P., James B. Hadden, and Anne M. Hughes, Columbus, for relator.
The McTigue Law Group, Donald J. McTigue, Mark A. McGinnis, Columbus, and John M. Stephan, for respondent.
Robert L. Berry Co., L.P.A., and Robert L. Berry, urging granting of the writ for amicus curiae Buckeye State Sheriffs Association.
Matthew C. Giannini, Youngstown, urging denial of the writ for amicus curiae David P. Aey.
{¶ 1} This is an expedited election action for a writ of prohibition to prevent respondent, Mahoning County Board of Elections, from placing David P. Aey's name on the ballot as a candidate for the office of Mahoning County Sheriff in the March 4, 2008 Democratic Party primary election. Because the board of elections abused its discretion by clearly disregarding R.C. 311.01(B), we grant the writ.
{¶ 2} On November 21, 2007, David P. Aey filed a declaration of candidacy and petition to become a candidate for the Democratic Party nomination for the office of Mahoning County Sheriff on the March 4, 2008 primary election ballot. In accordance with R.C. 3513.05, on January 5, relator, Mahoning County Sheriff Randall A. Wellington, filed a protest in the board of elections challenging Aey's candidacy. Sheriff Wellington claimed that Aey was not eligible to be a candidate for sheriff because "he does not meet the qualifications to run for the office of sheriff" under R.C. 311.01(B)(9).
{¶ 3} On January 18, 2008, the board of elections held a hearing on the protest. At the hearing, Aey withdrew his claim that he qualified as a candidate for sheriff based on the postsecondary-education requirement of R.C. 311.01(B)(9)(b). The following pertinent evidence was introduced on the issue of whether Aey met the supervisory-experience requirement of R.C. 311.01(B)(9)(a).
{¶ 4} In December 1993, the Mahoning County Sheriff's Department hired Aey, and he was later promoted to deputy sheriff. Aey conceded that he had never held a rank higher than deputy sheriff while employed at the sheriff's office. When Aey was hired, the classified ranks in the office were deputy sheriff, corporal, sergeant, lieutenant, and captain. Promotions to corporal from deputy sheriff were made by appointment rather than by examination.
{¶ 5} During Aey's employment, however, collective bargaining resulted in the abolishment of the rank of corporal in the sheriff's office. Corporals who did not take or pass a promotional examination for sergeant were returned to the rank of deputy sheriff, and those corporals who passed the examination were promoted to sergeant. After the abolition of the corporal position, the classified positions in the sheriff's office were deputy sheriff, sergeant, lieutenant, and captain. Aey never held the position of sergeant, lieutenant, or captain, and he declined to take a promotional examination. Aey's title was designated as "Deputy 3" on his payroll records from 2003 through 2007. And in a July 2007 letter Aey filed with his candidacy petition, the personnel coordinator for the sheriff's office stated that Aey had been employed there "as a full-time Deputy Sheriff since December 6, 1993."
{¶ 6} After the corporal position was abolished, the United States Marshals Violent Fugitive Task Force was established as a collaborative, multijurisdictional effort to issue warrants and arrest certain fugitives. In June 2003, Major Michael Budd1 of the Mahoning County Sheriff's Department appointed Aey to be in charge of the task force for the sheriff's office. According to Aey, Major Budd advised him that he would be given the position of corporal to oversee three more senior deputy sheriffs on the task force, that his overtime would offset the pay difference between the ranks of deputy sheriff and corporal, and that once the county's financial crisis had ended, the major would issue an order recognizing that he was working as a corporal on the task force. Major Budd also informed Aey not to tell anybody about the promotion because the rank of corporal had been abolished and not to take any promotional examination because he had already been placed in the position. Major Budd, however, never issued an order formalizing Aey's purported promotion to the rank of corporal.
{¶ 7} Sheriff Wellington acknowledged that Major Budd was the second-in-command at the sheriff's office, but noted that the major had no authority to promote Aey. Aey, as well as the deputy sheriffs who testified, agreed that Aey had never held a rank other than deputy sheriff and had never served as a corporal.
{¶ 8} Aey worked with the task force as the sheriff's department representative, supervising other deputy sheriffs in executing warrants, accepting payroll forms, issuing press releases, and generally coordinating task force activities for the sheriff's office until his resignation in August 2007.
{¶ 9} At the protest hearing, Aey argued that his supervisory experience as a member of the U.S. Marshals task force was "tantamount" to or the "de facto" equivalent of the responsibilities of a corporal. In his written brief submitted to the board of elections, Aey claimed that although he "was not provided a specific title of Corporal or any higher rank, he in fact, performed each and every responsibility of a `Corporal' or of a higher ranking individual within the Mahoning County Sheriff's Department."
{¶ 10} At the conclusion of the evidence and argument presented by Sheriff Wellington and Aey, the board of elections denied the protest and decided to place Aey's name on the March 4, 2008 primary election ballot as a candidate for sheriff. One of the board members had stated that he felt that Aey's service with the U.S. Marshals task force constituted supervisory experience that was "equivalent to that of a corporal." Another board member noted that despite the abolition of the position of corporal in the sheriff's office, a liberal construction of the supervisory-experience requirement warranted denial of the protest. The remaining board member who voted on the protest stated that he had a "problem with the corporal ranking," but that he would deny the protest.
{¶ 11} On January 22, Sheriff Wellington filed this expedited election action for a writ of prohibition to prevent the board of elections from placing Aey's name on the primary election ballot as a candidate for sheriff. The board filed an answer, and the parties submitted evidence and briefs pursuant to the expedited election schedule set forth in S.Ct.Prac.R. X(9). Sheriff Wellington also filed a motion for leave to file an amended petition or complaint instanter.
{¶ 12} This cause is now before the court for its consideration.
{¶ 13} Before we address the merits, we first consider several preliminary issues raised by the board of elections. The board asserts that this case should be dismissed because (1) Sheriff Wellington failed to comply with the affidavit requirements of S.Ct.Prac.R. X(4)(B), (2) Sheriff Wellington violated S.Ct.Prac.R. X(4)(A) by filing a petition instead of a complaint, (3) the petition was not brought in the name of the state on the relation of the sheriff, (4) the petition failed to name the board members as respondents, and (5) the petition fails to state a cognizable prohibition claim.
{¶ 14} S.Ct.Prac.R. X(4)(B) provides that for complaints instituting an original action in this court:
{¶ 15}
{¶ 16} The board of elections claims that the affidavit submitted by Sheriff Wellington in support of his petition fails to comply with S.Ct.Prac.R. X(4)(B) because the affidavit does not specify the details of the claim, does not set forth facts admissible in evidence, and does not affirmatively show that Sheriff Wellington is competent to testify to all matters stated in the affidavit. Sheriff Wellington's affidavit states that he has "reviewed the facts contained in the foregoing Petition for Writ of Prohibition, and affirm that they are accurate based on my personal knowledge."
{¶ 17} The board contends that based on the court's precedent concerning violations of S.Ct.Prac.R. X(4)(B), this case should be dismissed. See, e.g., State ex rel. Commt. for the Charter Amendment for an Elected Law Director v. Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 14; State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 32.
{¶ 18} The board's contention lacks merit. Although "a substantial disregard of the whole body of these rules cannot be tolerated," "[i]n order to promote justice, the court exercises a certain liberality in enforcing a strict attention to its rules, especially as to mere technical infractions." Drake v. Bucher (1966), 5 Ohio St.2d 37, 40, 34 O.O.2d 53, 213 N.E.2d 182; see also State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 22.
{¶ 19} By specifying in his affidavit that he swore to the accuracy of the facts in the petition and stating that those facts are based on his personal knowledge, Sheriff Wellington satisfied the rule...
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