Whitman v. Hamilton Cty. Bd. of Elections, No. 2002-1700.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Per Curiam
• Citation: 97 Ohio St.3d 216,2002 Ohio 5923,778 N.E.2d 32
• Decision Date: 30 October 2002
• Docket Number: No. 2002-1700.
• Parties: WHITMAN v. HAMILTON COUNTY BOARD OF ELECTIONS et al.

Page 32

778 N.E.2d 32 97 Ohio St.3d 216 2002 Ohio 5923 WHITMAN
v.
HAMILTON COUNTY BOARD OF ELECTIONS et al. No. 2002-1700. Supreme Court of Ohio. Submitted October 25, 2002. Decided October 30, 2002.

Page 33

Dinsmore & Shohl, L.L.P., and Mark A. Vander Laan, Cincinnati, for relator.

Michael K. Allen, Hamilton County Prosecuting Attorney, Gordon M. Strauss and Edward J. Geiser, Assistant Prosecuting Attorneys, for respondent Hamilton County Board of Elections.

Betty D. Montgomery, Attorney General, Arthur J. Marziale Jr. and Elizabeth Luper Schuster, Assistant Attorneys General, for respondent Secretary of State J. Kenneth Blackwell.

PER CURIAM.

{¶ 1} In February 2002, Frederick D. Nelson filed a declaration of candidacy and a petition for the Republican Party nomination for judge of the Court of Common Pleas of Hamilton County, Ohio, for the full term commencing February 10, 2003. Nelson subsequently won the May 7, 2002 primary election and is the Republican Party candidate for that judgeship in the November 5, 2002 general election. Relator, Bruce B. Whitman, is the Democratic Party candidate in the same election.

{¶ 2} On August 14, 2002, Whitman filed a written protest challenging Nelson's candidacy with respondent Hamilton County Board of Elections. In his protest, Whitman claimed that Nelson did not meet the eligibility criteria of R.C. 2301.01 because Nelson will not have practiced law in Ohio for at least six years preceding the commencement of his term if he is elected judge. At a hearing before the board, Nelson argued that the protest should be dismissed as untimely.

{¶ 3} On September 16, 2002, the board of elections deadlocked two-to-two on the motion to dismiss Whitman's protest. On September 30, 2002, the board submitted the matter to respondent Secretary of State Kenneth Blackwell pursuant to R.C. 3501.11(X).

{¶ 4} On September 30, 2002, the Secretary of State dismissed Whitman's protest. The Secretary of State agreed with Nelson that the protest was not timely filed.

{¶ 5} On October 3, 2002, Whitman filed this action for a writ of prohibition or, in the alternative, a writ of mandamus to prevent the board and the Secretary of State from placing Nelson's name on the November 5, 2002 election ballot, and if already placed, to strike his name from the ballot. Respondents filed answers, and the parties filed evidence and briefs pursuant to the expedited schedule in S.Ct. Prac.R. X(9).

{¶ 6} This cause is now before the court for a consideration of the merits.

{¶ 7} Whitman requests writs of prohibition and mandamus to prevent the board of elections and the Secretary of State from placing Nelson's name on the November 5, 2002 election ballot.

Mandamus

{¶ 8} Whitman's mandamus claim is an ill-disguised request for prohibitory injunctive relief: to prevent Nelson's candidacy at the November 5, 2002 general election. "`In general, if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a

Page 34

cause of action in mandamus and must be dismissed for want of jurisdiction.'" State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 537, 757 N.E.2d 319, quoting State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716 N.E.2d 704.

{¶ 9} Like the relator in State ex rel. Cunningham v. Amer Cunningham Co., L.P.A. (2002), 94 Ohio St.3d 323, 324, 762 N.E.2d 1012, Whitman attempts to couch his claim in terms of compelling affirmative duties on the part of respondents — to remove Nelson's name from the ballot if it has already been placed on it. But since the manifest objective of his claim is to prohibit Nelson's candidacy, mandamus is as inappropriate as it was in Cunningham.

{¶ 10} Therefore, we lack jurisdiction over Whitman's mandamus claim, and as in comparable expedited election cases, we dismiss it. Phillips, 93 Ohio St.3d at 537, 757 N.E.2d 319; State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72 Ohio St.3d 69, 70-71, 647 N.E.2d 769.

Prohibition

{¶ 11} In 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. See, e.g., State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78; State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 583, 651 N.E.2d 995. There is no allegation of fraud or corruption here. Consequently, the dispositive issue is whether the Secretary of State abused his discretion or clearly disregarded applicable law in dismissing Whitman's protest as untimely.

{¶ 12} The Secretary of State neither abused his discretion nor clearly disregarded applicable law in holding that Whitman's protest was untimely and that at the time of the protest, the board of elections lacked authority to consider sua sponte Nelson's qualifications under R.C. 2301.01. "County boards of elections are of statutory creation, and the members thereof in the performance of their duties must comply with applicable statutory requirements." State ex rel. Babcock v. Perkins (1956), 165 Ohio St. 185, 187, 59 O.O. 258, 134 N.E.2d 839. R.C. 3501.39 governs pre-election protests concerning petitions and candidacies in election matters by providing:

{¶ 13} "(A) The secretary of...