State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections

[Cite as State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections, 2019-Ohio-4032.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, ex rel. CLAYTON JUDGES:
WELLER Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Relator Hon. Earle E. Wise, Jr., J.
-vs- Case No. 2019 AP 09 0037
TUSCARAWAS COUNTY BOARD of
ELECTIONS OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Denied
DATE OF JUDGMENT ENTRY: September 30, 2019
APPEARANCES:
For Relator For Respondent
TONYA J. RODGERS ROBERT R. STEPHENSON II
BAKER, DUBLIKAR , BECK ASSISTANT PROSECUTOR
WILEY & MATHEWS 125 East High Avenue
400 South Main Street New Philadelphia, Ohio 44663
North Canton, Ohio 44720
Tuscarawas County, Case No. 2019 AP 09 0037 2
Wise, John, J.
{¶1} Relator, Clayton Weller, filed a Complaint for Writ of Mandamus against
Respondent, Tuscarawas County Board of Elections (“Board of Elections”), on
September 9, 2019. The issue presented in Mr. Weller’s writ of mandamus is whether his
name should be placed on the November 5, 2019 ballot as a candidate for the office of
mayor for the Village of Sugarcreek.
{¶2} Mr. Weller circulated part petitions containing a “statement of candidacy”
and “nominating petition.” On June 21, 2019, Mr. Weller timely filed four part petitions with
the Board of Elections. The Board of Elections determined Mr. Weller’s part petitions
contained a total of 72 valid signatures. However, the Board of Elections met on August
19, 2019, and rejected certification of Mr. Weller’s petitions for placement on the general
election ballot because the “nominating petition” section of the Petition Form No. 3-O was
not completed on all four part petitions. An example of the four incomplete part petitions’
“nominating petition” section is below:
{¶3} The Board of Elections notified Mr. Weller of its decision by letter dated
August 22, 2019. Mr. Weller thereafter filed this original action and maintains that under
R.C. 3513.261 he only needed to complete the “statement of candidacy” section of the
Tuscarawas County, Case No. 2019 AP 09 0037 3
petition before circulation for signature and that he satisfied this requirement. Mr. Weller
further contends that R.C. 3513.261 does not expressly require completion of the
“nominating petition” section of the form for compliance and certification and that
completion of the “nominating petition” is merely duplicative of the information contained
in the “statement of candidacy.” Thus, Mr. Weller asserts that by completing the
“statement of candidacy,” he substantially complied with R.C. 3513.261. Finally, Mr.
Weller makes a public policy argument that Ohio law governing access to the ballot is to
be construed liberally in favor of granting access.
{¶4} To prevail on his writ, Mr. Weller must prove that he has a clear legal right
to have his name placed on the November 5, 2019 ballot, that the Board of Elections is
under a clear legal duty to provide the requested relief, and that Mr. Weller has no
adequate remedy in the ordinary course of the law. State ex rel. Linnabary v. Husted, 138
Ohio St. 3d 535, 2014-Ohio-1417, 8 N.E.2d 940, ¶13. We find Mr. Weller has established
that he has no adequate remedy in the ordinary course of the law due to the nearness of
the general election. See State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121
Ohio St. 3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶10.
{¶5} “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 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. Here, there is no evidence or argument regarding fraud or corruption. Instead, the
dispositive issues are whether the Board of Elections abused its discretion or clearly
disregarded applicable law by rejecting Mr. Weller’s part petitions.
Tuscarawas County, Case No. 2019 AP 09 0037 4
{¶6} At the outset, Mr. Weller contends the standard for compliance under R.C.
3513.261 is substantial compliance and not strict compliance. In State ex rel. Husted v.
Brunner, 123 Ohio St. 3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶15, the Ohio Supreme
court held, “[t]he general rule is that, unless there is language allowing substantial
compliance, election statutes are mandatory and must be strictly complied with.” Under
R.C. 3513.261, when the General Assembly references the concept of substantial
compliance, it does so with regard to the issue of “form.” For example, the first sentence
of the statute provides: “A nominating petition may consist of one or more separate
petition papers, each of which shall be substantially in the form prescribed in this section.”
(Emphasis added.) In Simonetti v. Summit Cty. Bd. of Elections, 151 Ohio St. 3d 50, 2017-
Ohio-8115, 85 N.E.3d 728, the Court explained that R.C. 3513.261 “requires only
substantial compliance with the prescribed ‘form’ of the nominating petition, but the
statute contains no language regarding substantial compliance as to other matters.”
Simonetti at ¶26.
{¶7} The Court further explained in Simonetti that “[w]hen considering questions
of substantial compliance with an election statute, we examine whether the requirement
at issue ‘serves a public interest and a public purpose.’ ” Id. at ¶ 27. In Simonetti, the
Court concluded the requirement that a candidate sign the statement of candidacy on the
petition paper before circulating the nominating petition advances two public purposes.
Id. First, it guarantees adequate notice of the candidate’s identity to electors and second,
it ensures the petition will not be used for a candidacy other than the one intended by the
signers. Id. Importantly, the Court concluded “[t]hese interests do not relate merely to the
Tuscarawas County, Case No. 2019 AP 09 0037 5
‘form’ of a nominating petition but go to the very substance.” The Court concluded
Simonetti’s substantial-compliance argument was unavailing. Id.
{¶8} Here, Mr. Weller contends strict compliance with submission of a completed
“nominating petition” was not required because R.C. 3513.261 does not expressly require
completion of the “nominating petition” section of the form and the information contained
in the “nominating petition” section of the petition is merely duplicative of that contained
in the “statement of candidacy” section. Thus, Mr. Weller maintains nothing would be
accomplished by requiring him to supply the same information in the “nominating petition”
section of the petition.
{¶9} In support of his argument, Mr. Weller cites State ex rel. Yacobozzi v. Lorain
Cty. Bd. of Elections, 27 Ohio App. 3d 280, 500 N.E.2d 905 (9th Dist.1985), where the
court of appeals granted a writ of mandamus for placement of relator’s name on the ballot.
The court found the absence of the day of the month on which the declaration of
candidacy was completed did not mislead anyone and because the statement of
candidacy was completely filled out prior to circulation among the electors, the electors
were properly informed. Id. at 281. Yacobozzi is distinguishable from the facts here
because in Yacobozzi, relator merely failed to complete a date and not an entire section
of the petition.
{¶10} Further, under Simonetti and the substantial compliance analysis, we must
determine whether the completion of the “nominating petition” section of the petition
serves a public interest and public purpose. We find that it does. This section of the
petition indicates to the signators of the petition the name of the candidate they are
nominating, the office the candidate is running for, and whether the term sought by the
Tuscarawas County, Case No. 2019 AP 09 0037 6
candidate is a full or unexpired term. Essentially, Mr. Weller’s failure to complete the
“nominating petition” section of the petition resulted in the signators nominating nobody
as a candidate.
{¶11} Also, the fact that Mr. Weller completed the “statement of candidacy”
section of the petition does not remedy the fact that he did not complete the “nominating
petition” section. Although the “nominating petition” section of the petition contains
information that duplicates the information provided in the “statement of candidacy,” the
purpose of the two sections are not duplicative. They serve two separate purposes. The
“statement of candidacy” is the candidate’s declaration that he or she intends to run for a
particular office and is an elector qualified to vote for the office he or she seeks. The
“nominating petition” section of the petition actually identifies the candidate being
nominated by the signators to the petition, the office being sought by the candidate, and
the term of the office.
{¶12} Thus, Mr. Weller’s failure to provide any information in the “nominating
petition” section of the petition does not relate merely to the “form” of the nominating
petition, but goes to its very substance. Further, the “nominating petition” section of the
petition serves several public interests and purposes. It identifies the person who is being
nominated by the signators and the office being sought by the candidate.
{¶13} In his Reply, Mr. Weller references State ex rel. Phillips v. Lorain Cty. Bd.
of Elections, 62 Ohio St. 3d 214, 581 N.E.2d 513 (1991), which left blank the “nominating
committee” section of a petition. Id. Relator requested that the nominating petitions be
rejected. Id. The Ohio Supreme Court disagreed and denied the writ because the current
version of R.C. 3513.261 did not expressly require the appointment of a nominating
Tuscarawas County, Case No. 2019 AP 09 0037 7
committee, with this change in the law occurring in 1930 when the statute was repealed.
Id. at 216. By analogy, Mr. Weller maintains the same analysis applies here to the
“nominating petition” section of the form.
{¶14} We disagree. R.C. 3513.261 specifically requires that a nominating petition
substantially comply with the form set forth in the statute. The example in the statute
contains a “nominating petition” section. Because the “nominating petition” section of the
petition must be included to substantially comply with the required form, we cannot
assume that failure to complete the required information substantially complies with the
mandate of the statute. Therefore, Phillips is not persuasive. Further, Mr. Weller cited no
other case law that found a petition to be valid where the candidate failed to complete any
portion of the “nominating petition” section of the petition.
{¶15} For these reasons, we find the Tuscarawas County Board of Elections did
not abuse its discretion or act in clear disregard of applicable legal provisions when it
concluded Mr. Weller’s Nominating Petitions were not completed as required by law.
{¶16} Mr. Weller’s writ of mandamus is denied.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
.
JWW/d 0927