State ex rel. Bobovnyik v. Mahoning Cty. Bd. of Elections (Slip Opinion) ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bobovnyik v. Mahoning Cty. Bd. of Elections, Slip Opinion No. 2020-Ohio-4003.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-4003THE STATE EX REL. BOBOVNYIK v. MAHONING COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Bobovnyik v. Mahoning Cty. Bd. of Elections, Slip
Opinion No. 2020-Ohio-4003.]
Mandamus—Elections—Action to compel board of elections to certify relator as an
independent candidate for election for the office of county sheriff—
Residency—R.C. 311.01(B)(2)—County board of elections did not abuse its
discretion or disregard applicable law in determining that relator did not
satisfy residency requirement—Writ denied.
(No. 2020-0784—Submitted August 4, 2020—Decided August 7, 2020.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, Douglas Bobovnyik, seeks a writ of mandamus to compel
respondent, the Mahoning County Board of Elections, to certify his name to the
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November 3, 2020 ballot as an independent candidate for the office of Mahoning
County Sheriff. We deny the writ.
Background
{¶ 2} In 2018, Bobovnyik began considering whether to run for the office of
Mahoning County Sheriff in the November 2020 general election. At that time, he
was a lieutenant in the Youngstown Police Department and a Columbiana County
resident. Under R.C. 311.01(B)(2), to be an eligible independent candidate,
Bobovnyik had to be a resident of Mahoning County “for at least one year
immediately prior to” March 16, 2020. In March 2019, he took steps to establish his
residency in Mahoning County.
{¶ 3} On March 1, 2019, Bobovnyik signed a commercial lease for a used-
car lot in Austintown, Mahoning County. The premises included a two-story
building, and Bobovnyik testified that he immediately moved into an apartment on
the second floor of the building. According to Bobovnyik, he furnished the apartment
with a bed, established utility and Internet connections, and began receiving mail
there. He also reported the Austintown address to his bank as his new address and
purchased checks reflecting that change. And he testified that on several occasions
he had been served subpoenas (related to his work as a police officer) at the
Austintown address. He testified that he lived there until March 1, 2020, when he
moved to an apartment in Canfield, which is also in Mahoning County, where he
still resides.
{¶ 4} Throughout this time, Bobovnyik’s wife continued to live at the
couple’s Columbiana County home. Bobovnyik has conceded that he split his time
between the Mahoning County apartments and the Columbiana County family
home and that he occasionally spent the night in Columbiana County. He also has
acknowledged that he entertained guests at his Columbiana County home after
March 2019.
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{¶ 5} On March 16, 2020, Bobovnyik filed with the board his statement of
candidacy and nominating petition to be an independent candidate for Mahoning
County Sheriff for the November 3, 2020 general election. At a hearing on May
26, the board heard testimony from several witnesses concerning Bobovnyik’s claim
that he had resided in Mahoning County since March 2019. Bobovnyik testified to
the facts set forth above, but other witnesses either contradicted him or gave the board
reasons to question whether Bobovnyik actually had resided in Mahoning County.
{¶ 6} Bobovnyik’s stepdaughter and her husband testified that Bobovnyik
and his wife have continued to live at their Columbiana County house since March
2019, and they both suggested that the apartments in Mahoning County were a ruse
to allow Bobovnyik to run for office in Mahoning County. The Youngstown Police
Department’s chief of police testified that when Bobovnyik completed paperwork
for his retirement in April 2019, he listed his Columbiana County address as his
home address. And a process server who had attempted to serve a subpoena on
Bobovnyik’s wife at the Columbiana County house (to compel her to attend the
May 26 hearing) testified that Bobovnyik answered the door in his bathrobe at 7:00
a.m. Bobovnyik’s wife was in Florida at the time of the May 26 hearing and did
not attend. Bobovnyik testified that when his wife is out of town, he spends the
night at the Columbiana County house to care for their dogs.
{¶ 7} The board also considered numerous documents relating to a federal
lawsuit involving the Bobovnyiks’ Columbiana County house. In several of those
documents, Bobovnyik or his attorney suggested that Bobovnyik was residing—
and would continue to reside—at the house after March 1, 2019. Most notably, in
a May 2019 conveyance-fee statement that was recorded with the Columbiana
County auditor, Bobovnyik (or someone acting on his behalf) indicated that his
Columbiana County house would be his principal residence on or before January 1,
2020. That representation qualified Bobovnyik for a homestead exemption to
reduce the taxes on the property, which was titled solely in his name. See R.C.
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323.151 et seq. And Bobovnyik also signed a settlement agreement filed in federal
court in May 2019 suggesting that he was still living at his house in Columbiana
County. At the May 26 hearing, Bobovnyik conceded that by signing the settlement
agreement, he had told the federal court that he was residing in Columbiana County
at the time.
{¶ 8} The board questioned Bobovnyik’s credibility and found him ineligible
to be a candidate for the office of Mahoning County Sheriff because he had not
demonstrated that he had resided in Mahoning County for the year immediately
preceding March 16, 2020, as required under R.C. 311.01(B)(2). The board also
found Bobovnyik to be ineligible because the board had not received the results of
his background check, as required under R.C. 311.01(B)(6). The board therefore
refused to place Bobovnyik’s name on the ballot.
{¶ 9} On June 24, 2020, Bobovnyik filed this mandamus action to compel
the board to place his name on the November 3, 2020 ballot for the office of
Mahoning County Sheriff. We granted Bobovnyik’s motion for an expedited case
schedule, and the case is now fully briefed.
Analysis
{¶ 10} To be entitled to a writ of mandamus, Bobovnyik must prove, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy
in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55,
2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
{¶ 11} The first two elements require us to determine whether the board
“engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of
applicable legal provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio
St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Bobovnyik does not allege fraud
or corruption, so the question is whether the board abused its discretion or clearly
disregarded applicable law. A board of elections abuses its discretion when it acts
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unreasonably, arbitrarily, or unconscionably. State ex rel. McCann v. Delaware
Cty. Bd. of Elections, 155 Ohio St.3d 14, 2018-Ohio-3342, 118 N.E.3d 224, ¶ 12.
{¶ 12} As for the third element, a relator in an election mandamus action
often lacks an adequate remedy in the ordinary course of the law due to the
proximity of the election. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of
Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18. The
election at issue here is less than 90 days away, and under R.C. 3511.04, the board
must distribute uniformed-services and overseas absentee ballots at least 46 days
before the election. Bobovnyik therefore lacks an adequate remedy in the ordinary
course of the law and satisfies the third element for mandamus relief.
{¶ 13} R.C. 311.01(B)(2) provides that “no person is eligible to be a
candidate for sheriff, and no person shall be elected * * * to the office of sheriff,
unless * * * [t]he person has been a resident of the county in which the person is a
candidate for * * * the office of sheriff for at least one year immediately prior to
the qualification date.” The parties agree that the applicable qualification date was
March 16, 2020.
{¶ 14} “In election cases involving candidate-residence issues, this court
applies R.C. 3503.02.” State ex rel. Morris v. Stark Cty. Bd. of Elections, 143 Ohio
St.3d 507, 2015-Ohio-3659, 39 N.E.3d 1232, ¶ 23. Four provisions of R.C. 3503.02
are relevant to determining Bobovnyik’s residence:
(A) That place shall be considered the residence of a person
in which the person’s habitation is fixed and to which, whenever the
person is absent, the person has the intention of returning.
(B) A person shall not be considered to have lost the person’s
residence who leaves the person’s home and goes into another state
or county of this state, for temporary purposes only, with the
intention of returning.
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(C) A person shall not be considered to have gained a
residence in any county of this state into which the person comes for
temporary purposes only, without the intention of making such
county the permanent place of abode.
(D) The place where the family of a married person resides
shall be considered to be the person’s place of residence; except that
when the spouses have separated and live apart, the place where
such a spouse resides the length of time required to entitle a person
to vote shall be considered to be the spouse’s place of residence.
{¶ 15} R.C. 3503.02 “emphasizes the person’s intent to make a place a fixed
or permanent place of abode.” State ex rel. Duncan v. Portage Cty. Bd. of Elections,
115 Ohio St.3d 405, 2007-Ohio-5346, 875 N.E.2d 578, ¶ 11. When the various
factors listed in R.C. 3503.02 lead to conflicting conclusions, the person’s claim
that a particular location is his voting residence must be accorded substantial
weight. State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915
N.E.2d 1215, ¶ 27.
{¶ 16} The board argues that because Bobovnyik is married, R.C.
3503.02(D) controls. Bobovnyik correctly points out, however, that the language
in R.C. 3503.02(D) does not create an irrebuttable presumption that Bobovnyik’s
residence was in Columbiana County. See Husted at ¶ 32-34. But Bobovnyik goes
even further, suggesting that we should disregard his wife’s residency entirely and
focus only on his stated intent to reside in Mahoning County. We do not accept
that invitation; although not irrebuttable, R.C. 3503.02(D) does “create[] a
presumption that the place where the family of a married person resides is the
person’s place of residence.” Husted at ¶ 32. The residency of Bobovnyik’s wife
is relevant.
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January Term, 2020
{¶ 17} Bobovnyik also argues that R.C. 3503.02(D) does not apply here,
because it contains an exception for “when the spouses have separated and live
apart.” He argues that the exception applies because, although he and his wife are
not legally separated, they do live apart. Bobovnyik’s reading of that exception
fails to account for the statute’s language that the exception applies when the
spouses are “separated and liv[ing] apart.” (Emphasis added.) To have meaning
other than “living apart,” “separated” must refer to something akin to legal
separation under R.C. 3105.17. Otherwise, the exception would swallow the rule
entirely—the place where a person’s spouse resides would be the person’s
residence, unless the person does not live with the spouse.
{¶ 18} The fact that Bobovnyik’s wife continues to reside in Columbiana
County works against Bobovnyik’s mandamus claim and supports the board’s
conclusion. That alone makes it difficult for him to show—by clear and convincing
evidence—that the board abused its discretion. See Husted, 123 Ohio St.3d 288,
2009-Ohio-5327, 915 N.E.2d 1215, at ¶ 27. But additional relevant factors also
support the conclusion that the board did not abuse its discretion.
{¶ 19} As noted above, R.C. 3503.02 emphasizes a person’s intent to reside
in a particular place. Duncan, 115 Ohio St.3d 405, 2007-Ohio-5346, 875 N.E.2d
578, at ¶ 11; Husted at ¶ 27. Bobovnyik argues that his own testimony expressing
his intent to become a Mahoning County resident, along with the Austintown lease
and his updated banking records, definitively establishes his residency in Mahoning
County. He contends that the board misapplied the law by considering
documentary evidence to the contrary. And he argues that a statement of a board
member at the May 26 hearing—that a person cannot establish residency “just by
leasing a property and saying * * * this is where I live now”—is emblematic of the
board’s legal error in disregarding his subjective intent.
{¶ 20} Bobovnyik overestimates the legal significance and weight of his
own testimony. Although we repeatedly have emphasized that a person’s declared
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intent to reside in a particular place is a significant factor in determining the
person’s residency, Bobovnyik fails to support his argument that a person’s own
statements are conclusive in the face of conflicting evidence. When the evidence
is not one-sided, a board of elections has discretion to consider a witness’s
credibility and assign weight to the evidence accordingly. See State ex rel.
Herdman v. Franklin Cty. Bd. of Elections, 67 Ohio St.3d 593, 596, 621 N.E.2d
1204 (1993).
{¶ 21} In cases involving a challenge to a candidate’s residency, the main
issue often is the candidate’s subjective intent. See, e.g., Morris, 143 Ohio St.3d
507, 2015-Ohio-3659, 39 N.E.3d 1232, at ¶ 27. It is obviously hard to scrutinize a
candidate’s own claims about where he intends to reside. That is, how can one
really question Bobovnyik’s intent after he clearly took steps to try to establish his
residency in Mahoning County?
{¶ 22} But the board did not disbelieve Bobovnyik’s stated intent. Rather,
the record indicates that the board did not believe that Bobovnyik actually started
living in Mahoning County in March 2019 or that he continued to live there
throughout the next 12 months. Using the terminology of R.C. 3503.02(A), the
board did not believe that Bobovnyik’s “habitation [wa]s fixed” in Mahoning
County.
{¶ 23} Indeed, several pieces of evidence raised legitimate questions about
where Bobovnyik was actually living between March 2019 and March 2020.
Significantly, Bobovnyik’s own stepdaughter and her husband testified that they
believe that Bobovnyik had been living in Columbiana County all along, and they
even suggested that Bobovnyik and his wife had considered multiple possible
Mahoning County addresses to identify as a residence. Besides Bobovnyik’s own
testimony, there is no evidence showing that Bobovnyik was actually living in
Mahoning County. In fact, his Austintown lease limited his use of the premises to
commercial car-lot purposes, and his connection to utilities and the Internet,
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procurement of checks that included that address, and receipt of subpoenas at that
address are all consistent with his establishing a used-car business. In this light, the
board member’s statement that a person cannot establish residency “just by leasing
a property” has clearer meaning: it does not appear that the board member
questioned Bobovnyik’s subjective intent.
{¶ 24} Bobovnyik mainly relies on three cases to support his claim that the
board abused its discretion and disregarded applicable law. He first relies on this
court’s decision in State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections, 144
Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, to argue that it does not matter
that he frequently had been absent from Mahoning County, so long as he always
intended to return there. In Holwadel, the question was whether a person who had
relocated to South Korea for work was qualified to be a Hamilton County elector. Id.
at ¶ 1, 6-7. Before moving to South Korea, the elector had been working and living
in Chicago, and over the course of several months before the move to South Korea,
he vacated his Chicago residence and stayed for short periods with a friend in
Cincinnati. Id. at ¶ 6-28. During that time, he used his friend’s address to register to
vote in Hamilton County. Id. at ¶ 7. We held that the board of elections did not abuse
its discretion in rejecting a challenge to the elector’s qualifications, because there was
evidence that the elector intended to return to Cincinnati when his business in South
Korea had concluded. Id. at ¶ 36.
{¶ 25} Although Holwadel suggests that it is relatively easy to establish a
fixed place of habitation for voting purposes, that case is distinguishable.
Significantly, there was no dispute in Holwadel that the elector’s other place of
habitation—South Korea—was temporary. See id. at ¶ 22. In contrast, here, there
are legitimate questions about whether Bobovnyik’s habitation at his house in
Columbiana County after March 2019 was truly temporary. In fact, he testified that
he would sell the house only if he won the election.
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{¶ 26} Bobovnyik also relies on our decision in Morris, 143 Ohio St.3d 507,
2015-Ohio-3659, 39 N.E.3d 1232, to support his claim that signing a lease for a
new place to live, moving belongings there, and sleeping there for several nights is
enough to prove a change in residency. In Morris, the question was whether a
candidate to be mayor of Canton had been a resident of that city on the day that he
filed his nominating petition. Id. at ¶ 1, 20. The day before he filed the petition,
the candidate had moved from his home in another municipality into a house in
Canton that was owned by a friend. Id. at ¶ 7, 9, 14, 16. He had signed a lease for
the house and took some furniture with him, but his wife stayed at the family home.
Id. at ¶ 14-15. The candidate slept in the house for only four nights before moving
into another house in Canton with his wife. Id. at ¶ 15. Despite the fact that the
candidate’s wife had initially remained in another municipality, we held that the
candidate’s subjective intent controlled. Id. at ¶ 23-26.
{¶ 27} Morris certainly supports the proposition that a court considering a
residency challenge must give a candidate’s declaration of a voting residence
substantial weight. Id. at ¶ 26. But it does not advance Bobovnyik’s claim that his
“habitation [wa]s fixed,” R.C. 3503.02(A), in Mahoning County. Whereas the
candidate in Morris apparently only had to show that he had been living in Canton
on the day that he filed his petition, Bobovnyik has a much greater burden: he must
show that he had a fixed habitation in Mahoning County over the course of the
entire year before the qualification date. Based on the evidence presented, it was
within the board’s discretion to find that Bobovnyik did not meet that burden.
{¶ 28} Finally, Bobovnyik relies on this court’s decision in State ex rel.
O’Neill v. Athens Cty. Bd. of Elections, __ Ohio St.3d __, 2020-Ohio-1476, __
N.E.3d __, to emphasize that a candidate can satisfy a one-year residency
requirement based on her “subjective intention * * * to move permanently” to a
new county. But O’Neill, too, fails to support Bobovnyik’s argument that the board
abused its discretion and disregarded applicable law. Although O’Neill involved a
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one-year residency requirement, it was uncontroverted that the state-legislature
candidate began residing in the district before the one-year period began and that
she continued to reside there. Id. at ¶ 15. And Bobovnyik himself acknowledges
that it was significant in O’Neill that the board of elections had “identified no other
R.C. 3503.02 factors that it believe[d] contradict[ed the candidate’s] stated
intention to make Athens County her residence.” Id. at ¶ 22. The same cannot be
said here, because the application of R.C. 3503.02(D) (which implicates
Bobovnyik’s wife’s residency in Columbiana County) clearly contradicts
Bobovnyik’s stated intent.
{¶ 29} Under R.C. 311.01(B)(2), Bobovnyik had to be a resident of
Mahoning County for the entire year preceding March 16, 2020. He testified that
he had met that requirement by living in two Mahoning County apartments during
that one-year period and because he intended to establish his residency there. But
after considering substantial evidence, the board questioned whether Bobovnyik
had actually been living in Mahoning County. We defer to that factual
determination and hold that the board did not abuse its discretion or disregard
applicable law in determining that Bobovnyik did not satisfy R.C. 311.01(B)(2).
{¶ 30} Because the board’s residency determination alone was sufficient to
prevent Bobovnyik’s name from being placed on the ballot, we need not address
the board’s additional determination that Bobovnyik failed to satisfy R.C.
311.01(B)(6).
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
KENNEDY and STEWART, JJ., concur in judgment only.
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Brunner Quinn, Rick L. Brunner, and Patrick M. Quinn, for relator.
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Paul J. Gains, Mahoning County Prosecuting Attorney, and Gina D.
Zawrotuk and Sharon K. Hackett, Assistant Prosecuting Attorneys, for respondent.
_________________
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