State Ex Rel. Livingston v. Miami County Board of Elections ( 2011 )

[Cite as State ex rel. Livingston v. Miami Cty. Bd. of Elections, 196 Ohio App.3d 263, 2011-Ohio-6126.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DIVISION
MIAMI COUNTY
STATE EX REL. :
LIVINGSTON ET AL., :
: Appellate Case No. 2011-CA-12
:
v. :
:
MIAMI COUNTY BOARD OF :
ELECTIONS. :
DECISION AND FINAL JUDGMENT ENTRY
September 8th , 2011
Donald J. McTigue, J. Corey Colombo, and Mark A. McGinnis;
and Bryan Pacheco, for relators.
Gary A. Nasal, Miami County Prosecuting Attorney, and Mark W. Altier, Chief
Civil Assistant Prosecuting Attorney, for respondents.
Per Curiam.
{¶ 1} This matter is before the court in an original action commenced on
petitions for writs of mandamus and prohibition filed by relators, James R. Livingston
and Robert M. Harrelson. The respondent is the Miami County Board of Elections.
{¶ 2} The election of a candidate for the office of law director for the city of
Troy, Ohio, will be submitted to the voters at the general election held on November 8,
2011. Petitioners Livingston and Harrelson are both residents of the city of Troy and
are duly qualified electors of Miami County. In April 2011, prior to the filing deadline,
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both relators filed with the board petitions of candidacy for the office of law director of
Troy. The form of the petitions was as prescribed by R.C. 3513.261.
{¶ 3} On June 7, 2011, the board held a public hearing to consider the
candidacies of nine persons who had filed petitions in the form prescribed by R.C.
3513.257. Each of those persons, including Livingston and Harrelson, had requested
that his name appear on the ballot as a nonparty or “independent” candidate. R.C.
3501.01(I) provides:
{¶ 4} “ ‘Independent candidate’ means any candidate who claims not to be
affiliated with a political party, and whose name has been certified on the office-type
ballot at a general or special election through the filing of a statement of candidacy and
nominating petition, as prescribed in section 3513.257 of the Revised Code.”
{¶ 5} The board heard testimony and took other evidence relative to the claims
of each of the nine candidates that the candidate is not affiliated with a political party.
Following that, the board adjourned its public hearing and retired to consider what it
had heard. The board thereafter resumed its public hearing, at which the chairman of
the board made the following pronouncement:
{¶ 6} “Thank you for your patience. We are now back on the record. We
considered, and it is our duty to consider, the credibility, motive, voting record. We
considered the evidence, the documents and we’ve considered the briefs. Present in
our deliberations were the four board members and our counsel, Mr. Nasal and Mr.
Altier. We considered it all and so we view it our duty to apply the law and the facts as
we understand them to be.
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{¶ 7} “I would also say for the record any recitation of facts or law by me or
other board members is not intended to be any kind of finding of fact or conclusion of
law, but rather our vote as announced was made in consideration of all the facts, all the
evidence, everything in the record and the written material and briefs that were
presented.
{¶ 8} “So with that we’re going to now take a vote again on the record. And,
Ms. Calendine, if you’ll record the vote in the order in which we – well, let me explain as
well our duty here is to make a determination about eligibility to be an independent
candidate. So a yes vote means the petition is accepted. A no vote is the petition is
not accepted.”
{¶ 9} The board voted to accept the petitions of seven of the nine independent
candidates, including two who had filed petitions as candidates for the office of law
director of Troy. The board voted to invalidate the petitions filed by relators Livingston
and Harrelson.
{¶ 10} Relators filed joint petitions for writs of mandamus and prohibition on June
15, 2011, challenging the board’s invalidation of their petitions. They filed an amended
petition on June 21, 2011. Respondent filed an answer on June 28, 2011.
{¶ 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 on applicable legal
provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216,
2002-Ohio-5923, ¶ 11. Relators make no claim of fraud or corruption. Consequently,
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the dispositive issue is whether the board abused its discretion in invalidating relators’
petitions.
{¶ 12} R.C. 3501.38 governs petitions filed by candidates for election. R.C.
3501.39(A) establishes standards for unacceptable petitions. That section provides:
{¶ 13} “The secretary of state or a board of elections shall accept any petition
described in section 3501.38 of the Revised Code unless one of the following occurs:
{¶ 14} “(1) A written protest against the petition or candidacy, naming specific
objections, is filed, a hearing is held, and a determination is made by the election
officials with whom the protest is filed that the petition is invalid, in accordance with any
section of the Revised Code providing a protest procedure.
{¶ 15} “(2) A written protest against the petition or candidacy, naming specific
objections, is filed, a hearing is held, and a determination is made by the election
officials with whom the protest is filed that the petition violates any requirement
established by law.
{¶ 16} “(3) The candidate’s candidacy or the petition violates the requirements of
this chapter, Chapter 3513. of the Revised Code, or any other requirements established
by law.”
{¶ 17} In State ex rel. Stefanick v. Marietta Mun. Court, 21 Ohio St.2d. 102, 104
(1970), the Supreme Court held:
{¶ 18} “A writ of prohibition will be allowed only in the absence of a plain and
adequate remedy in the ordinary course of the law and where the action complained of
represents either a clear usurpation of judicial power or the assumption of jurisdiction
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where none exists.
{¶ 19} “Prohibition is a preventive writ rather than a corrective remedy and is
designed to prevent a tribunal from proceeding in a matter which it is not authorized to
hear and determine. It cannot be used to review the regularity of an act already
performed.” (Citations omitted.)
{¶ 20} R.C. 3105.39(A) confers jurisdiction on the board to invalidate relators’
petitions for any of the causes that section identifies. Further, the relief relators now
seek to require the board to instead accept their petitions is a corrective remedy rather
than preventive. Therefore, prohibition cannot lie.
{¶ 21} R.C. 2731.01 defines mandamus as “a writ, issued in the name of the
state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act [that] the law specially enjoins as a duty resulting from an office,
trust, or station.” Ordinarily, mandamus is available only against a public officer or
agency to require performance of an official act that the officer or agency has a clear
legal duty to perform and has failed to perform and when the relator has no adequate
legal remedy by way of appeal. The relator must demonstrate that he or she has a
clear legal right to have the requested act performed. The proximity of an election
establishes the lack of an adequate remedy in the ordinary course of law. State ex rel.
Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, ¶
10.
{¶ 22} The board argues that “[a] mere abuse of discretion does not authorize
the use of the writ of mandamus[.] * * * [O]rdinarily relief will only be granted upon a
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demonstration of a ‘gross abuse of discretion.’ ” The board relies on State ex rel.
Libbey-Owens Ford Glass Co. v. Indus. Comm., 162 Ohio St. 302 (1954). The board
relates that higher standard to the presumption that officers and boards “will be
presumed to have properly performed their duties and not to have acted illegally but
regularly and in a lawful manner.” State ex rel. Boccuzzi v. Cuyahoga Cty. Bd. of
Commrs., 112 Ohio St.3d 438, 2007-Ohio-323, ¶ 16.
{¶ 23} Frankly, we have difficulty affording the board the presumption of
regularity that the “gross abuse of discretion” standard requires. The board made no
findings to support its decision to invalidate the relators’ petitions. R.C. 3501.09(A)(1)
and (2), which apply to written protests, expressly require “a determination by the
election officials” before a board of elections may decline to accept petitions. The
catch-all provision in R.C. 3501.09(A)(3) expresses no like requirements, but a
determination is surely necessary to support a finding that a petition violates the
requirements on R.C. Chapter 3501 or 3513 “or any other requirements established by
law” before a petition is invalidated for those reasons. The board made none.
{¶ 24} Nevertheless, the parties agree that the board necessarily concluded that
relators’ claims that they are each an “independent candidate,” which is defined by R.C.
3501.01(I) to mean “any candidate who claims not to be affiliated with a political party,”
is untrue. Further, the board contends that, in so doing, it relied on the Ohio Secretary
of State Advisory No. 2007-05, which establishes guidelines for boards of elections
passing on that question.
{¶ 25} The secretary of state is the chief election officer of the state of Ohio and
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has authority over county board of elections, R.C. 3501.05, including the authority to
issue directives to boards. R.C. 3501.05(B), (M). Courts recognize the authority of
the secretary of state in election matters and have a duty to defer to the secretary’s
interpretations of election law if it is subject to two different, but equally reasonable,
interpretations. State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581 (1995).
Boards of elections likewise have a duty to defer to the secretary in interpreting and
implementing state election law. Lorenzi v. Mahoning Cty. Bd. of Elections, Mahoning
App. No. 07MA 127, 2007-Ohio-5879.
{¶ 26} Secretary of State’s Advisory No. 2007-05 interprets and applies the
holding of the United States Court of Appeals for the Sixth Circuit in Morrison v. Colley,
467 F.3d 503 (6th Cir.2006). In Morrison, after filing a petition claiming to be an
independent candidate, the candidate voted in a partisan primary election. Morrison
approved a board’s refusal to accept the candidate’s petition for that reason. Applying
Morrison, the secretary advised:
{¶ 27} “If an independent candidate votes in a party primary election after filing
as an independent, the candidate is not actually unaffiliated, and the candidate’s claim
of independence was either not made in good faith or is no longer current; and
{¶ 28} “If an independent candidate was on a political party’s central or executive
committee at the time he or she filed as an independent candidate, or becomes such a
committee member at any time during his or her independent candidacy, the candidate
is not actually unaffiliated, and the candidate’s claim of independence was either not
made in good faith or is no longer current.”
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{¶ 29} The secretary’s advisory is not confined to those particular facts, however.
The secretary advised boards of elections that “as indicated by the Morrison court, * * *
R.C. 3513.257 requires that an independent candidate actually be unaffiliated, or
disaffiliated from any political party; and the required claim of unaffiliation by an
independent candidate must be made in good faith.” The secretary further advised:
{¶ 30} “Additionally, as indicated by the Morrison court, indications of party
affiliation such as past voting history, information submitted on required election-related
filings, political advertisements, participation as a political party officer or member, or
holding a public office for which the office holder was nominated through a political
party’s primary election and elected on a partisan ticket may serve as evidence, though
not necessarily conclusive evidence, of party affiliation to support a protest against an
independent candidate’s candidacy. For example, voting history, alone, is an
insufficient basis on which to disqualify an independent candidate because Ohioans are
freely entitled to change or revoke their party affiliation at any time. However, voting
history, together with other facts tending to indicate party affiliation, may be sufficient
grounds to disqualify an independent.”
{¶ 31} The board heard evidence that in past years, both relators had voted in
Republican primary elections. Both had also signed petitions in support of Republican
candidates, and each had signed such a petition in January 2011, only several months
before he filed his petition as an independent candidate. Relator Livingston won office
as a Republican candidate for Miami County Prosecuting Attorney for a four-year term
in the early 1980's. Livingston was a member of the Miami County Republican
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executive committee from that time until February 16, 2011, when he resigned that
position. Since filing their petitions as independent candidates in April 2011, neither
relator has engaged in any conduct inconsistent with his claim that he is unaffiliated
with a political party.
{¶ 32} In Morrison and Lorenzi, and also in State ex rel. Wilkerson v. Trumbull
County Bd. of Elections, Trumbull App. No. 2007-T-0081, 2007-Ohio-4762, the boards
of elections’ determinations to not accept an independent candidate’s petitions was
based, in part, on conduct inconsistent with his claim that occurred thereafter, when the
candidate voted in a partisan primary election. At oral argument, the respondent board
conceded that its research revealed no case in which an independent candidate was
disqualified solely on the basis of prefiling conduct or activity.
{¶ 33} The election laws should be liberally construed in favor of candidates for
public office. State ex rel. Allen v. Warren Cty. Bd. of Elections, 115 Ohio St.3d 186,
2007-Ohio-4752, ¶ 20. “[A] candidate can renounce his prior affiliation with a party by
declaring in his ‘independent’ petition that he has now severed that association.”
Wilkerson, 2007-Ohio-4762, ¶ 24. A board of elections may, nevertheless, reject the
candidate’s petitions pursuant to R.C. 3501.39 on a finding that the candidate’s claim to
have disaffiliated with a political party was not made in good faith because the
candidate is not actually unaffiliated. A lack of good faith is shown by subsequent
conduct that is materially inconsistent with the prior claim of unaffiliation. A lack of
good faith may also be shown by evidence of prior conduct that portrays a subsequent
claim of disaffiliation to be a sham or deceitful.
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{¶ 34} Consistent with the liberal construction of the laws in favor of candidates,
a finding that the candidate’s claim was not made in good faith must be supported by
clear and convincing evidence. “Clear and convincing evidence is that measure or
degree of proof which will produce in the mind of the trier of facts a firm belief or
conviction of the allegations sought to be established. It is intermediate, being more
than a mere preponderance, but not to the extent of such certainty as is required
beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” (Emphasis sic.) Cross v. Ledford (1954), 161 Ohio St. 469, 477.
{¶ 35} The record supports a finding that both relators may have acted on a
calculation that they would have a better chance of winning as independent candidates.
However, that fails to rise to the level of clear and convincing evidence that their claims
of disaffiliation from the Republican party were not made in good faith because the
claim is a sham or deceitful—that is, that either actually remains affiliated with the
Republican party. Such proof is necessary to find an impropriety in their claims
sufficient to permit the board to invalidate their petitions pursuant to R.C. 3501.39(A) on
a finding of a lack of good faith.
{¶ 36} R.C. 3501.39(A) provides that a board of elections “shall accept any
petition” absent the findings in paragraphs (1) through (3) of that section. To the extent
that it made such findings with respect to the petitions that the relators filed, the board
abused its discretion. The board had a clear legal duty to accept their petitions and the
relators had a clear legal right to have their petitions accepted by the board. The
relators are therefore entitled to the writ they seek.
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{¶ 37} Respondent, the Miami County Board of Elections, shall promptly meet
and accept relators’ petitions of candidacy for the office of law director of Troy, and
thereafter take all necessary steps to insure that the relators’ candidacies for that
position are submitted to the voters of the city of Troy at the general election to be held
on November 8, 2011.
So ordered.
GRADY, P.J., and FAIN and DONOVAN, JJ., concur.