State ex rel. LetOhioVote.org v. Brunner , 125 Ohio St. 3d 420 ( 2010 )

[Cite as State ex rel. LetOhioVote.org v. Brunner, 125 Ohio St.3d 420, 2010-Ohio-1895.]
THE STATE EX REL. LETOHIOVOTE.ORG ET AL. v. BRUNNER, SECY. OF STATE.
THE STATE EX REL. NEW MODELS ET AL. v. BRUNNER, SECY. OF STATE.
THE STATE EX REL. CUMMINGS v. BRUNNER, SECY. OF STATE.
[Cite as State ex rel. LetOhioVote.org v. Brunner,
125 Ohio St.3d 420, 2010-Ohio-1895.]
Elections — Secretary of state’s investigations under R.C. 3501.05(N) — Issuance
of subpoena is not exercise of quasi-judicial authority — Writ of
prohibition denied.
(Nos. 2010-0367, 2010-0415, and 2010-0421 — Submitted April 27, 2010 —
Decided April 30, 2010.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 1} These are consolidated actions for writs of prohibition to prevent
respondent, Secretary of State Jennifer Brunner, from enforcing subpoenas to
compel relators to appear and testify at depositions and to produce documents
related to their efforts to exercise their constitutional right of referendum.
Because the secretary of state did not exercise judicial or quasi-judicial authority
in issuing the subpoenas, we deny the writ.
Facts
{¶ 2} Relator LetOhioVote.org is a ballot-issue committee that requested
a referendum on the video-lottery-terminal (“VLT”) provisions of 2009
Am.Sub.H.B. No. 1 (“H.B. 1”), and relators Thomas E. Brinkman Jr. and Gene
Pierce are committee members. Pierce is also the treasurer of LetOhioVote.org,
relator Carlo LoParo is a media-relations consultant for the committee, and relator
Norman B. Cummings is a political consultant for the committee.
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{¶ 3} On September 21, 2009, we granted a writ of mandamus in favor
of LetOhioVote.org and its committee members to compel the secretary of state to
treat the VLT provisions of H.B. 1 as subject to referendum because these
provisions do not fall within any of the exceptions to the constitutional right of
referendum. State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-
Ohio-4900, 916 N.E.2d 462. We stayed the VLT provisions for 90 days from the
date of the decision to allow the committee and its members a meaningful
opportunity to circulate a referendum petition. Id. at ¶ 54.
{¶ 4} On December 21, 2009, the committee filed its referendum petition
with the secretary of state. After the secretary notified the committee that its
petition was deficient by about 27,000 signatures, the committee filed over
175,000 supplemental signatures. On March 26, 2010, the secretary of state
certified the VLT provisions of H.B. 1 to the November 2010 ballot for a
referendum election.
{¶ 5} On January 29, 2010, the committee electronically filed its annual
campaign-finance report for 2009 with the secretary of state’s office. In its report,
the committee listed $1,551,000 in contributions received in 2009, with all of the
contributions coming from relator New Models. New Models claims to be a
Washington, D.C. corporation with a principal place of business in McLean,
Virginia, but its corporate status had been revoked by the District of Columbia in
September 2009 “for having failed and/or refused to file reports and pay all fees
due and owing on or before April 15, 2009.” On March 29, 2010, New Models’
corporate status was reinstated by the District of Columbia.
{¶ 6} Upon examining LetOhioVote.org’s 2009 campaign-finance
report, the secretary’s staff found what they considered to be irregularities. The
secretary of state decided to further investigate whether relator LetOhioVote.org’s
campaign-finance statement complied with the law, and on February 16, 2010, the
secretary’s office issued subpoenas for relators Pierce, LoParo, Brinkman,
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Cummings, and the committee’s records custodian to appear and testify as
witnesses at depositions scheduled for March 5 and to produce certain documents
related to the committee’s finances and Internet website. The secretary of state’s
office also issued subpoenas for the custodian of records of relator New Models
and its president, relator Tim Crawford, to appear and testify at the March 5
depositions and to produce certain documents related to financial and corporate
information about New Models. The subpoenas claimed to be issued pursuant to
R.C. 3501.05(N) and (CC) and threatened criminal sanctions pursuant to R.C.
3599.37 for a failure to appear, testify, and produce requested documents. All of
the subpoenas were successfully served except for the ones issued to Cummings.
{¶ 7} On February 17, the day after she issued the subpoenas to relators,
the secretary of state issued a press release entitled “Secretary Brunner Opens
Campaign-Finance Investigation Regarding LetOhioVote.org.” In her press
release, the secretary of state opined that LetOhioVote.org had violated campaign-
finance law by concealing the true sources of its funding. Notably, since
Secretary of State Brunner took office in January 2007, she has filed
approximately 764 complaints with the Ohio Elections Commission. She has not,
however, issued subpoenas in connection with an investigation of alleged
violations of campaign-finance law except for those that she issued in her
investigation of LetOhioVote.org.
{¶ 8} In March 2010, relators filed these original actions for writs of
prohibition to prevent the secretary of state from enforcing her subpoenas. We
granted alternative writs and issued schedules for the submission of evidence and
briefs. State ex rel. LetOhioVote.org v. Brunner, 124 Ohio St.3d 1489, 2010-
Ohio-739, 922 N.E.2d 225; State ex rel. New Models v. Brunner, 124 Ohio St.3d
1502, 2010-Ohio-809, 922 N.E.2d 966; State ex rel. Cummings v. Brunner, 124
Ohio St.3d 1503, 2010-Ohio-863, 922 N.E.2d 967. We later granted the parties’
joint motion to consolidate these cases. State ex rel. LetOhioVote.org v. Brunner,
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124 Ohio St.3d 1511, 2010-Ohio-919, 923 N.E.2d 154; State ex rel. New Models
v. Brunner, 124 Ohio St.3d 1512, 2010-Ohio-919, 923 N.E.2d 154; State ex rel.
Cummings v. Brunner, 124 Ohio St.3d 1512, 2010-Ohio-919, 923 N.E.2d 155.
{¶ 9} When the secretary of state attempted to depose some of the
relators in the course of discovery in these cases, we granted their motions for
protective orders to prevent the depositions and deferred consideration of relators
New Models’ and its president’s motion for sanctions until the merits
determination. See, e.g., State ex rel. LetOhioVote.org v. Brunner, 124 Ohio
St.3d 1525, 2010-Ohio-1230, 923 N.E.2d 624. We then denied the secretary’s
motion to vacate the protective orders. See, e.g., State ex rel. LetOhioVote.org v.
Brunner, 124 Ohio St.3d 1527, 2010-Ohio-1247, 923 N.E.2d 1157.
{¶ 10} This case is now before the court for our consideration of the
merits as well as the motion for sanctions. Because the parties’ briefs are
sufficient to resolve the legal issues raised, we deny the secretary of state’s
motion for oral argument.
Legal Analysis
Prohibition
{¶ 11} To be entitled to the requested writ of prohibition, relators must
establish that by issuing the subpoenas, (1) Secretary of State Brunner is about to
exercise judicial or quasi-judicial power, (2) the exercise of that power is
unauthorized by law, and (3) denying the writ will result in injury for which no
other adequate remedy exists in the ordinary course of law. See State ex rel.
Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214, ¶ 15;
State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584, 2010-
Ohio-1176, 925 N.E.2d 601, ¶ 15.
Quasi-Judicial Power
{¶ 12} For the first requirement, “relators must establish that the secretary
of state is about to exercise or has exercised judicial or quasi-judicial power.”
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State ex rel. Parrott v. Brunner, 117 Ohio St.3d 175, 2008-Ohio-813, 882 N.E.2d
908, ¶ 6. The office of secretary of state is a nonjudicial office. Therefore, we
must determine whether the secretary of state exercised quasi-judicial authority by
issuing subpoenas, requiring persons to testify and to produce documents, as part
of her general investigative authority.
{¶ 13} We have consistently defined quasi-judicial authority as “ ‘the
power to hear and determine controversies between the public and individuals that
require a hearing resembling a judicial trial.’ (Emphasis added.)” State ex rel.
Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-
Ohio-5093, 895 N.E.2d 177, ¶ 16, quoting State ex rel. Wright v. Ohio Bur. of
Motor Vehicles (1999), 87 Ohio St.3d 184, 186, 718 N.E.2d 908.
{¶ 14} The secretary of state claims that she was authorized by R.C.
3501.05(N)(1) to investigate whether LetOhioVote.org violated election law and
by R.C. 3501.05(CC) to issue subpoenas in furtherance of her investigation.
Neither R.C. 3501.05(N) nor 3501.05(CC), however, requires the secretary of
state to conduct a quasi-judicial hearing when she decides to issue subpoenas as
part of her investigation of a possible election-law violation. Therefore, the
secretary has not exercised the requisite quasi-judicial authority. See Parrott, 117
Ohio St.3d 175, 2008-Ohio-813, 882 N.E.2d 908, ¶ 8-10 (because there is no
requirement for the secretary of state to hold a hearing resembling a judicial trial
when the secretary issues a directive or breaks a tie vote of a board of elections on
whether to comply with the secretary’s directive, a writ of prohibition would not
lie against the secretary).
{¶ 15} Moreover, the mere fact that the subpoenas issued by the secretary
of state themselves required relators to appear and testify at deposition
proceedings that resemble in some respects a judicial trial does not warrant a
different conclusion. “The dispositive fact is that no statute or other law
required” the secretary of state to conduct a quasi-judicial hearing when she
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issued the subpoenas. (Emphasis sic.) State ex rel. Scherach v. Lorain Cty. Bd. of
Elections, 123 Ohio St.3d 245, 2009-Ohio-5349, 915 N.E.2d 647, ¶ 23 (mere fact
that board of elections held a protest hearing resembling a judicial trial even
though not required to do so did not constitute the exercise of quasi-judicial
authority subject to a writ of prohibition); State ex rel. Janosek v. Cuyahoga
Support Enforcement Agency, 123 Ohio St.3d 126, 2009-Ohio-4692, 914 N.E.2d
404, ¶ 1 (“Because no statute or other pertinent law required the agency to
conduct a hearing resembling a judicial trial when it issued its notice to withhold
income for spousal support, the agency did not exercise the judicial or quasi-
judicial authority required for appellants to be entitled to the requested
extraordinary relief in prohibition” [emphasis sic]).
{¶ 16} This result is consistent with our observation in State ex rel. Taft v.
Franklin Cty. Court of Common Pleas (1992), 63 Ohio St.3d 190, 195, 586
N.E.2d 114, that the “general obligation of the Secretary of State [under R.C.
3501.05(N)] to investigate and report violations of election laws imposes no
specific adjudicatory procedure, does not even grant quasi-judicial authority, and
is thus not comparable to * * * special statutory proceedings * * *. It commands
an administrative act–an investigation–not an adjudicatory proceeding.”
{¶ 17} Most of the cases cited by relators are not on point, because in
those cases, the entire proceedings at issue, which tangentially included the power
to subpoena, were, in fact, quasi-judicial in nature. See Ohio Historical Soc. v.
State Emp. Relations Bd. (1990), 48 Ohio St.3d 45, 46-47, 549 N.E.2d 157(proceedings before the State Employment Relations Board on a union’s petition
for a representation election were quasi-judicial because a hearing was conducted
at which notice was given and testimonial and documentary evidence was
submitted); Haught v. Dayton (1973), 34 Ohio St.2d 32, 35, 63 O.O.2d 49, 295
N.E.2d 404 (charter proceeding before a city civil service board, which provided
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January Term, 2010
for a hearing on an appeal from a dismissal, reduction, or suspension, was a quasi-
judicial proceeding).
{¶ 18} Relators’ reliance on State ex rel. Ministerial Day Care Assn. v.
Montgomery, 100 Ohio St.3d 343, 2003-Ohio-6446, 800 N.E.2d 18, is also
misplaced, because we did not specifically hold in that case that the state auditor’s
issuance of a subpoena constituted a judicial or a quasi-judicial act. Instead, we
resolved the prohibition claim by holding that the state auditor did not patently
and unambiguously lack jurisdiction to issue the challenged subpoena. Id. at ¶
13-16 (incorrectly numbered in the opinion as ¶ 4-7).
{¶ 19} Furthermore, the solitary case that relators cite that arguably
supports their claim is inconsistent with our controlling precedent. In Ohio Bell
Tel. v. Ferguson (1980), 61 Ohio St.2d 74, 15 O.O.3d 117, 399 N.E.2d 1206, we
held that a writ of prohibition was the proper remedy to challenge the authority of
the state auditor and the state examiner of the Bureau of Inspection and
Supervision of Public Offices to issue subpoenas because it was uncontested that
respondents’ actions in issuing the subpoenas were “in the exercise of a quasi-
judicial power.” Id. at 77. We did not apply the pertinent test for determining
whether quasi-judicial power was being exercised in that case, see, e.g., Upper
Arlington, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶ 16, and the
case is bereft of any support for its conclusion in that regard. Consequently, we
will not apply Ohio Bell here, in the context of an investigation by the secretary of
state, which we expressly held in a later case to be an administrative rather than a
quasi-judicial act. See Taft, 63 Ohio St.3d at 195, 586 N.E.2d 114.
{¶ 20} Therefore, because no statute or other pertinent law required the
secretary of state to conduct a hearing resembling a judicial trial when she
decided to issue the subpoenas to relators in furtherance of her investigation of
LetOhioVote.org’s 2009 campaign-finance report, the secretary of state did not
exercise quasi-judicial authority in issuing them. Scherach, 123 Ohio St.3d 245,
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2009-Ohio-5349, 915 N.E.2d 647, ¶ 22-23; Parrott, 117 Ohio St.3d 175, 2008-
Ohio-813, 882 N.E.2d 908, ¶ 8-10.
Sanctions
{¶ 21} When we granted the motion of relators New Models and
Crawford for a protective order, we deferred consideration of their motion for
sanctions against the secretary of state and her counsel for the attempted
subpoenas for depositions and production of documents in discovery in this case.
Under S.Ct.Prac.R. 14.5(A), if the court, “sua sponte or on motion by a party,
determines that an appeal or other action is frivolous or is prosecuted for delay,
harassment, or any other improper purpose, it may impose, on the person who
signed the appeal or action, a represented party, or both, appropriate sanctions. *
* * An appeal or other action shall be considered frivolous if it is not reasonably
well-grounded in fact or warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing law.” Although we granted the
protective order, we are not persuaded that the secretary’s attempted discovery
constituted frivolous conduct, because it was at least in part directed to the issue
of New Models’ corporate status and standing. Therefore, we deny the motion for
sanctions.
Conclusion
{¶ 22} Consequently, because the secretary of state did not exercise quasi-
judicial authority in issuing the subpoenas that relators challenge, relators are not
entitled to the requested extraordinary relief in prohibition. This result does not
leave relators without an adequate remedy, for a challenge may be made to the
propriety of the subpoenas in a common pleas court action for a prohibitory
injunction. Scherach, 123 Ohio St.3d 245, 2009-Ohio-5349, 915 N.E.2d 647, ¶
25. For the foregoing reasons, relators are not entitled to the requested
extraordinary relief in prohibition. The parties’ remaining claims, including those
regarding whether the secretary of state patently and unambiguously lacked
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jurisdiction to issue the challenged subpoenas, are rendered moot by this holding
and need not be addressed. This is consistent with our general rules precluding
advisory opinions and extolling judicial restraint. See LetOhioVote.org, 123 Ohio
St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51.
Writ denied.
LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and CUPP,
JJ., concur.
PFEIFER, ACTING C.J., concurs separately.
The late CHIEF JUSTICE THOMAS J. MOYER did not participate in the
decision in this case.
__________________
PFEIFER, ACTING C.J., concurring.
{¶ 23} On February 21, 1912, former president Theodore Roosevelt
addressed the delegates at the Ohio Constitutional Convention regarding initiative
and referendum:
{¶ 24} “If in any state the people are themselves satisfied with their
present representative system, then it is of course their right to keep that system
unchanged; and it is nobody’s business but theirs. But in actual practice it has
been found in very many states that legislative bodies have not been responsive to
the popular will. Therefore I believe that the state should provide for the
possibility of direct popular action in order to make good such legislative failure.”
1 Proceedings and Debates of the Constitutional Convention of the State of Ohio
(1913) 383, available at http://www.supremecourt.ohio.gov/LegalResources/Law
Library/resources/day24.pdf.
{¶ 25} Wouldn’t Teddy be dismayed to learn that the “direct popular
action” of the people of Ohio is far, far from direct, involving straw men, front
organizations, red herrings, and smoke and mirrors, and winding its way from
Ohio to the New Models’ “headquarters” in a nondescript house in suburban
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McLean, Virginia, and back again, with possibly a couple of stops in the
boardroom of a gaming company or in the luxury suite of a basketball arena?
Shouldn’t we all be dismayed that the exercise of pure democracy that is the right
of referendum, added to our Constitution after a vote of the people in 1912, has
been made impure through surreptitious funding? Shouldn’t we expect our
secretary of state, as Ohio’s chief elections officer, to aggressively investigate
instances where our election laws appear to be exploited? Or in the alternative,
should we not expect her to investigate in order to identify a gaping hole in our
election law that could not have been intended by the General Assembly?
{¶ 26} I concur.
__________________
Langdon Law, L.L.C., David R. Langdon, Thomas W. Kidd Jr., and
Bradley M. Peppo, for relators LetOhioVote.org, Thomas E. Brinkman Jr., Gene
Pierce, and Carlo LoParo.
Baker & Hostetler, L.L.P., John H. Burtch, Rodger L. Eckelberry, and
Robert J. Tucker, for relators New Models and Timothy Crawford.
Axelrod, L.L.C., Brian J. Laliberte, and David F. Axelrod, for relator
Norman B. Cummings.
Richard Cordray, Attorney General, and Richard N. Coglianese, Erick D.
Gale, and Pearl M. Chin, Assistant Attorneys General, for respondent.
______________________
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