2006 Ohio 966 | Ohio Ct. App. | 2006
{¶ 2} The facts of this case are as follows: Relator's status as a qualified elector of Kelley's Island was first challenged in February 2002, following his election to the office of Kelley's Island council. This challenge was ultimately dismissed; respondent finding that relator was a resident of Kelley's Island. In September 2003, respondent challenged relator's voter registration pursuant to R.C.
{¶ 3} On September 10, 2004, respondent conducted a hearing, pursuant to R.C.
{¶ 4} On September 21, 2004, relator commenced an action in the Erie County Court of Common Pleas seeking to enjoin respondent from enforcing its September 10, 2004 decision finding that relator was inappropriately registered. Relator also challenged the constitutionality of R.C.
{¶ 5} Thereafter, on March 11, 2005, relator filed a new voter registration card. On April 29, 2005, relator was notified by respondent that it rejected his registration and requested evidence as to "what had changed since [relator was] previously denied registration."
{¶ 6} Relator commenced the instant action on August 19, 2005, requesting that this court order respondent to re-register relator as a qualified elector of the Kelley's Island precinct. Following the denial of respondent's motion to dismiss, respondent filed its answer on October 5, 2005, asserting several affirmative defenses including that relator had an adequate remedy at law and that relator failed to exhaust his administrative remedies.
{¶ 7} On November 3, 2005, respondent filed its motion for summary judgment arguing that relator failed to meet his burden of proof to demonstrate that he is a qualified elector, relator has an adequate remedy at law, respondent has no clear legal duty to place relator on the precinct roll, and that mandamus is not an appropriate remedy in the absence of fraud, corruption, or an abuse of discretion. Conversely, in his November 4, 2005 motion for summary judgment relator contends that he has a clear legal right to be registered as a qualified elector in the Kelley's Island precinct and, thus, respondent has a corresponding duty to register him as such. Relator also argues that respondent's cancellation of this registration was invalid due to the deliberations held in an unauthorized executive session. Finally, relator asserts that he has no adequate remedy at law to provide him with relief in "exercising his statutory and constitutional right to vote as a qualified elector in the precinct of his residency." The parties have filed memoranda in opposition to the respective summary judgment motions as well as reply memoranda.
{¶ 8} At the outset we note that summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Harlessv. Willis Day Warehousing Co. (1978),
{¶ 9} We further note that "[t]he standard for reviewing a decision of a board of elections is whether the board engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions." State ex rel. Carr v.Cuyahoga Cty. Bd. of Elections (1992),
{¶ 10} A writ of mandamus is an extraordinary remedy. To be entitled to a writ of mandamus, a relator must establish a clear legal right to the relief requested, a clear legal duty to perform the requested act on the part of the respondent, and that the relator has no plain and adequate remedy at law. State exrel. Crabtree v. Ohio Bur. of Workers' Comp. (1994),
{¶ 11} As set forth above, the issues before us include: whether relator has a clear legal right to be registered as a qualified elector in the Kelley's Island precinct; whether respondent has a clear legal duty to register relator; and, finally, whether relator has no adequate remedy at law. Relator contends that he has been a resident of Kelley's Island for the past 20 years and, despite the fact that his wife is now a Florida resident, he still considers Kelley's Island his permanent residence.
{¶ 12} R.C.
{¶ 13} "Every citizen of the United States who is of the age of eighteen years or over and who has been a resident of the state thirty days immediately preceding the election at which the citizen offers to vote, is a resident of the county and precinct in which the citizen offers to vote, and has been registered to vote for thirty days, has the qualifications of an elector and may vote at all elections in the precinct in which the citizen resides."
{¶ 14} The rules for determining residence are set forth in R.C.
{¶ 15} "All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules:
{¶ 16} "(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.
{¶ 17} "(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.
{¶ 18} "* * *.
{¶ 19} "(D) The place where the family of a married man or woman resides shall be considered to be his or her place of residence; except that when the husband and wife have separated and live apart, the place where he or she resides the length of time required to entitle a person to vote shall be considered to be his or her place of residence."
{¶ 20} At the September 10, 2004 hearing on the challenge to relator's voter registration, relator testified as follows:
{¶ 21} "Q: Okay. During the period from June 2003 through this date, how many days would you estimate that you have spent on Kelley's Island?
{¶ 22} "A: I would say probably on or about 200 days.
{¶ 23} "Q: Okay. Could give me an idea when those days were spent, not day by day obviously, but in periods of time that you were on the island, by month perhaps?
{¶ 24} "A: Well, normally I'm on the island from Thursday until Tuesday. And I normally go to Columbus for a couple of days a week.
{¶ 25} "Q: Okay. In the period of time from probably August or late August through May or June, where do you primarily reside?
{¶ 26} "A: Kelley's Island, Ohio.
{¶ 27} "Q: Are you in down Florida at any point?
{¶ 28} "A: Of course.
{¶ 29} "Q: Okay. Could you tell me what your travel schedule is to go to Florida and how that works?
{¶ 30} "A: I don't have a fixed schedule. I go intermittently, and I come back for council meetings and spend a week or two every month I come back here."
{¶ 31} "Q: So would you say three weeks approximately of every month from September through May is spent in Tarpon [Florida]?
{¶ 32} "A: No. I would say three weeks of every month after January.
{¶ 33} "Q: Okay. And before that?
{¶ 34} "A: Kelley's Island, Ohio.
{¶ 35} "Q: And in December and November of 2003 were you down in Florida at all?
{¶ 36} "A: Of course.
{¶ 37} "Q: Okay. And what period were you down in Florida?
{¶ 38} "A: I don't recall.
{¶ 39} "Q: How about October of 2003.
{¶ 40} "A: I was in Florida in October.
{¶ 41} "Q: Less than three weeks for the month?
{¶ 42} "A: Yes, less than three weeks.
{¶ 43} "* * *.
{¶ 44} "Q: [W]ould it be fair to say that from January through April of 2003 and 2004, you also spent the majority of the time in Florida?
{¶ 45} "A: What do you mean by a majority of the time?
{¶ 46} "Q: More than half?
{¶ 47} "A: No.
{¶ 48} "Q: You just testified that from January on you spent about three weeks in Florida every month. Which is it?
{¶ 49} "A: More than half of what?
{¶ 50} "Q: Of a month.
{¶ 51} "A: In January and February?
{¶ 52} "Q: March and April.
{¶ 53} "A: No. That's not correct. Not more than half.
{¶ 54} "Q: Okay.
{¶ 55} "A: I said normally in January and February. March and April, I'm probably half and half. I have no idea, I don't keep records that closely."
{¶ 56} Relator also testified that he has a Kelley's Island mailing address, and that the Kelley's Island address is on his state and federal income tax returns. Relator also testified that he believed that the address on his personal automobile registration was Kelley's Island since it had been on Kelley's Island for ten years. Relator stated that he reported no earnings in Florida.
{¶ 57} At the conclusion of relator's testimony, the respondent board moved to convene to a private executive session to confer with the prosecutor. After returning to the hearing, the respondent board voted to uphold the challenge to relator's voter registration. Specifically, the board stated:
{¶ 58} "[T]he board finds that there is conflicting evidence and testimony. We have considered the operation of an application of 3502(D) of the Ohio Revised Code and looking at the authority of the Bell case from the Sixth Circuit, consider it as evidence, rather consider the application and residency of the spouses as evidence, but not as dispositive of the Board's finding, and finally state that the Board can make no determination whether or not someone can be registered in the state of Florida. We can only make the determination as to whether or not a person is appropriately registered in the precinct. And our inquiry can go no farther than that under Ohio law."
{¶ 59} In Bell v. Marinko (C.A.6 2004),
{¶ 60} Regarding the equal protection challenge, the Bell
court acknowledged that the word "shall" as used in R.C.
{¶ 61} Relator cites Cox v. Village of Union City (1948),
{¶ 62} While we agree with Cox's basic principle, in the present case, after careful review of the September 10, 2004 hearing transcript and the affidavits and additional evidence presented by the parties,2 we must find that respondent did not abuse its discretion when it upheld the challenge to relator's voter registration. Relator had the burden of establishing a clear legal right to be qualified as an elector; we find that relator failed to do so.
{¶ 63} In relator's amended complaint for a writ of mandamus, he further contends that during the September 10, 2004 hearing, respondent's act of deliberating in a private executive session was violative of the Ohio Open Meetings Act, R.C.
{¶ 64} R.C.
{¶ 65} In TBC Westlake, Inc. v. Hamilton Cty. Bd. ofRevision (1998),
{¶ 66} Under R.C.
{¶ 67} Upon review of the relevant statutory and case law, we must conclude that the September 10, 2004 hearing conducted on the challenge to relator's elector status was a quasi-judicial proceeding. Respondent was required to weigh the evidence in order to determine whether relator was, in fact, a resident of the Kelley's Island precinct. Accordingly, respondent was not required to comply with R.C.
{¶ 68} In conclusion, although we recognize the significance of relator's constitutional right to vote, we find troubling the fact that relator waited eleven months from respondent's September 10, 2004 decision to uphold the challenge, and just days prior to the deadline for filing for reelection, to file a complaint for a writ of mandamus in this court. Further, relator failed to either appeal from the trial court's dismissal of his action or cure the defects cited by the court. Finally, following his March 29, 2005 attempt to re-register, relator failed to respond to respondent's April 29, 2005 request for additional information. Had relator proceeded expeditiously, the ordinary course of law may have provided the relief sought. Relator cannot be the cause for the delay from which he now seeks immediate relief. Prior to again seeking relief in this or any court, relator must respond to respondent's request for additional information.
{¶ 69} Based on the foregoing, we find that respondent's motion for summary judgment is well-taken and granted, and that relator's motion for summary judgment is not well-taken and denied. Relator's complaint for a writ of mandamus is dismissed. Relator is ordered to pay the costs in this matter.
WRIT DENIED.
Handwork, J., Pietrykowski, J., Parish, J., concur.