State ex rel. Pike County Republican Executive Committee v. Brown , 43 Ohio St. 3d 184 ( 1989 )

Per Curiam.

This dispute must be resolved by reference to R.C. 3501.07. That statute provides, in part:

“At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. In such cases the secretary of state shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making the recommendation. If no such recommendation is made, the secretary of state shall make the appointment. ” (Emphasis added.)

In essence, the committee argues that Brown was required by R.C. 3501.07 to appoint Leist to fill the vacant board seat or, in the alternative, to set forth his reasons in writing for rejecting the committee’s recommendation. The committee claims that Brown failed in the latter regard, and that he therefore abused his discretion by not appointing Leist. The committee further claims that mandamus will lie to correct the abuse and to compel Leist's appointment.

In his answer to the complaint, Brown contends that the committee’s unsuccessful attempt for a writ of mandamus ordering Brower’s appointment invalidated the Brower recommendation. The result, according to Brown, is that no recommendation was made, triggering the duty in R.C. 3501.07 for the Secretary of State to “make the appointment.” Brown observes that he has, in fact, made such an appointment.

A close reading of R.C. 3501.07 supports Brown. Contrary to the committee’s argument, nothing in the statute suggests that Brown was required to appoint Leist pursuant to the committee’s second recommendation. Moreover, Brown was not required under the statute to explain why he rejected the Leist recommendation.

R.C. 3501.07 affords an executive committee only two alternatives when the Secretary of State rejects the nominee recommended within the specified period. If the committee’s first choice is not appointed, the committee may either make another recommendation or it may file for a writ of mandamus. R.C. 3501.07 does not allow the committee to make a second recommendation in addition to filing for a writ of mandamus.

Here, the committee elected to file a mandamus action following the rejection of the Brower recommendation. R.C. 3501.07 does not authorize the committee, following an unsuccessful mandamus action, to return to the recommendation stage. Thus, nothing in R.C. 3501.07 required Brown to consider the Leist recommendation. Since Brown had no statutory duty to consider this recommendation, it follows that he had no duty to accept it, or to set forth his reasons for rejecting the recommended appointment.

Since R.C. 3501.07 does not require the Secretary of State to consider and accept the committee’s recommendation of Leist, there is no act that we can properly compel through the issuance of a writ of mandamus. Furthermore, because Brown had no duty to explain why he rejected the Leist recommendation in writing, we find that he did not abuse his discretion by rejecting the Leist recommendation in the way that he did. Accordingly, the committee’s request for a writ of mandamus compelling Leist’s appointment to the board of elections is denied.

Writ denied.

Moyer, C.J., Sweeney, H. Brown and Resnick, JJ., concur. Holmes, Douglas and Wright, JJ., dissent.