State ex rel. Richards v. Stark Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Richards v. Stark Cty. Bd. of Elections, Slip Opinion No. 2015-Ohio-3658.]
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 formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-3658
THE STATE EX REL. RICHARDS ET AL. v. STARK COUNTY
BOARD OF ELECTIONS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Richards v. Stark Cty. Bd. of Elections,
Slip Opinion No. 2015-Ohio-3658.]
Elections—Prohibition—R.C. 3513.257—Action to prevent independent candidate
from running for office—Candidate’s declaration of independent status
must be made in good faith—Writ denied.
(No. 2015-1297—Submitted September 1, 2015—Decided September 9, 2015.)
IN PROHIBITION.
________________
Per Curiam.
{¶ 1} This is an expedited election case in which the relators seek a writ of
prohibition to prevent respondents, Ohio Secretary of State Jon Husted and the
Stark County Board of Elections, from placing the name of intervening
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respondent, Francis H. Cicchinelli Jr., on the November 2015 ballot as an
independent candidate for mayor of Massillon. We deny the writ.
Background
{¶ 2} Cicchinelli has a long history as a Democratic Party candidate and
officeholder in the city of Massillon. This history includes serving 14 years as a
Democrat on the Massillon City Council and six terms as the Democratic mayor
of Massillon.
{¶ 3} On April 29, 2015, Cicchinelli began circulating petitions to run for
mayor in the November election as an independent candidate. A candidate who
wishes to run as an independent must file a statement of candidacy and
nominating petitions with the board of elections no later than 4:00 p.m. the day
before the primary. R.C. 3513.257. Implicit in the submission of these
documents is the candidate’s declaration that he or she is independent; that
declaration must be made in good faith. State ex rel. Davis v. Summit Cty. Bd. of
Elections, 137 Ohio St. 3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 17, 28;
Morrison v. Colley, 467 F.3d 503, 509 (6th Cir.2006).
{¶ 4} Cicchinelli filed his papers, which declared his independent
candidacy, on May 4, 2015. The next day, May 5, Cicchinelli cast a nonpartisan
ballot in the primary election.
{¶ 5} On June 16, 2015, four protesters filed a protest of Cicchinelli’s
candidacy with the Stark County Board of Elections.1 The board of elections
conducted a protest hearing on July 13, 2015, at the end of which the members
deadlocked two-to-two on the protest. On July 31, 2015, Secretary of State
Husted broke the tie in favor of certifying Cicchinelli’s independent candidacy for
the November ballot.
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The names of two protesters, Shaddrick Stinson and Tony Townsend, were later removed from
the protest. Stinson testified that his name was placed on the protest without his knowledge or
consent. His testimony suggests that the same was true of Townsend, but the testimony is not
totally clear.
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{¶ 6} The two remaining protesters, relators Robert L. Richards and
Melvin T. Schartiger, then filed suit in this court for a writ of prohibition to
prevent Husted and the board of elections from placing Cicchinelli’s name on the
ballot. Cicchinelli was granted leave to intervene as a respondent and filed an
answer, but he failed to file a merit brief. The case is otherwise fully briefed and
ripe for decision.
Legal Analysis
{¶ 7} To prevail in their protest, the protesters had to prove by clear and
convincing evidence that Cicchinelli’s declaration was not made in good faith.
State ex rel. Monroe v. Mahoning Cty. Bd. of Elections, 137 Ohio St. 3d 62, 2013-
Ohio-4490, 997 N.E.2d 524, ¶ 25. And in an extraordinary-writ action
challenging a decision of the secretary of state, the standard is whether the
secretary of state engaged in fraud, corruption, or abuse of discretion or acted in
clear disregard of applicable law. State ex rel. Lucas Cty. Republican Party
Executive Commt. v. Brunner, 125 Ohio St. 3d 427, 2010-Ohio-1873, 928 N.E.2d
1072, ¶ 9.
{¶ 8} The protesters have abandoned the theories they advanced in the
protest hearing. Instead, their action rests entirely on a set of responses that
Cicchinelli gave when he was questioned by the protesters’ attorney at the
hearing:
Q. * * * Mr. Cicchinelli, could you please tell this Board of
Elections, what is the date that you claim you were first an
Independent?
A. Technically, it would be the May primary, when I voted
non-issues—or nonpartisan ballot.
Q. That would have been—the May primary would have been,
I believe, May 5th—
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A. The 5th.
Q. —Tuesday, May 5th, sir?
A. Yes.
According to the protesters, Cicchinelli admitted in this exchange that he did not
regard himself as an independent until May 5, 2015. From this, they conclude
that his claim of independence could not have been made in good faith and
therefore that Husted abused his discretion by disregarding this clear, convincing,
and unrebutted evidence.
{¶ 9} We disagree. The answer was ambiguous because the question was
imprecise. The protesters interpret Cicchinelli’s answer as indicating the date
when he first considered himself an independent, but that is not the question that
was asked. Rather, the question asked Cicchinelli for “the date that you claim you
were first an Independent.” (Emphasis added.)
{¶ 10} And his response, that technically it was the day he voted a
nonpartisan ballot, suggests he may have understood the question in a different,
more legalistic fashion. This court has noted that “[a] voter cannot register as an
independent, except in the negative sense of not voting in partisan primaries or
signing partisan nominating petitions.” State ex rel. Coughlin v. Summit Cty. Bd.
of Elections, 136 Ohio St. 3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 28, fn. 2.
Based on that language, one could reasonably conclude that an elector
“technically” becomes an independent by the act of casting a nonpartisan primary
ballot.
{¶ 11} The testimony of Joy Cicchinelli, Francis Cicchinelli’s wife, is
equally ambiguous and adds nothing to the analysis. Counsel for the protesters
asked her, “Did you have an understanding of when it was that your husband was
an Independent?” She replied, “My husband was an Independent when he, the
day of the primary, became an Independent.” No one asked Mrs. Cicchinelli for
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the basis for her “understanding” or what she thought it meant to say that her
husband became an independent on a particular day.
{¶ 12} Ambiguous responses to ambiguous questions cannot constitute
clear and convincing evidence. The protesters, who bore the burden of proof,
could have asked Cicchinelli to explain his meaning or used the precise question
to which they wanted an answer, but they chose not to do either thing. It was
therefore not an abuse of discretion for the secretary of state to conclude that the
protesters failed to meet their burden of proof.
{¶ 13} Alternatively, the protesters assert that Husted committed an error
of law. Their argument is premised on this court’s statement in Davis that R.C.
3513.257 requires that “a candidate must declare her lack of affiliation in good
faith, not that she take affirmative action to disaffiliate in order to prove her good
faith.” Davis, 137 Ohio St. 3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, at ¶ 28. In
Davis, the board of elections rejected the candidacy of an independent candidate
on the grounds that she had not taken sufficient affirmative steps to disaffiliate
from the Democratic Party. Id. at ¶ 27. This court reversed, holding that R.C.
3513.257 does not necessarily require a candidate to take affirmative steps to
disaffiliate in order to prove her good faith. Id. at ¶ 28.
{¶ 14} Citing Davis, the protesters argue that their burden was to prove
that Cicchinelli’s claim of independence (i.e., lack of affiliation) was made in bad
faith, not that his disaffiliation from the Democratic Party was made in bad faith.
And they claim that Husted imposed the wrong burden of proof upon them in his
tie-breaking letter, in which he wrote:
[A] recitation of past political activity does not impart a firm belief
or conviction that Mr. Cicchinelli, Jr.’s motivation was insincere.
Without clear and convincing evidence that his
disaffiliation from the Democratic Party was not in good faith, I
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* * * break this tie in favor of certifying Mr. Cicchinelli, Jr.’s
independent candidacy.
This argument does not withstand scrutiny.
{¶ 15} In this particular case, the only evidence of Cicchinelli’s
disaffiliation from the Democratic Party was his declaration that he was an
independent, which came through his filing of his statement of independent
candidacy. So when Husted wrote that he saw no evidence that the disaffiliation
was in bad faith, he was simultaneously saying that he saw no evidence to
challenge the good faith of the declaration. There is no other way to understand
that sentence, given the paucity of evidence presented by both sides. Moreover,
even if Husted did mischaracterize the legal test, the fact remains that the
protesters failed to present any evidence that the declaration was not made in
good faith.
Writ denied.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
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The Okey Law Firm, L.P.A., and Steven P. Okey, for relators.
John D. Ferrero, Stark County Prosecuting Attorney, and Deborah A.
Dawson and Stephan P. Babik, Assistant Prosecuting Attorneys, for respondent
Stark County Board of Elections.
Michael DeWine, Attorney General, and Tiffany L. Carwile and Nicole
M. Koppitch, Assistant Attorneys General, for respondent Ohio Secretary of State
Jon Husted.
Craig T. Conley, for intervening respondent Francis H. Cicchinelli Jr.
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