THE STATE EX REL. BRUBAKER v. LAWRENCE COUNTY BOARD OF ELECTIONS
No. 2022-0255
Supreme Court of Ohio
March 31, 2022
Slip Opinion No. 2022-Ohio-1087
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio-1087.]
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. 2022-OHIO-1087.]
THE STATE EX REL. BRUBAKER v. LAWRENCE COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio-1087.]
Elections—Mandamus—
(No. 2022-0255—Submitted March 29, 2022—Decided March 31, 2022.)
IN MANDAMUS.
Per Curiam.
{¶ 1} In this expedited election case, relator, Ray Brubaker, seeks a writ of mandamus compelling respondent, the Lawrence County Board of Elections (“the board“), to place a local
I. Background
A. The requirements for placing a local liquor option on the ballot
{¶ 2}
{¶ 3} Along with the part-petitions and list of permit holders, the petitioner must provide the board of elections with “an affidavit certifying that the petitioner notified all affected permit holders and liquor agency stores, if any, on the list * * * and that, at the time each signer of the petition affixed the signer‘s signature to the petition, the petition paper contained a copy of the list of affected permit holders and liquor store agencies.” Id. The Ohio secretary of state has promulgated Form No. 5-N, which is titled “Affidavit of Local Option Petitioner,” to serve as that affidavit. See Ohio Secretary of State Form No. 5-N, available at https://www.ohiosos.gov/globalassets/elections/forms/5-n.pdf (accessed Mar. 30, 2022) [https://perma.cc/JP6F-64NG]. A petitioner who swears to and signs Form No. 5-N attests that proper notice was given to all affected permit holders. In addition, Form No. 5-N states, “I also certify that each part-petition contained a copy of the list of affected permit holders, if any, at the time each signer of the
petition affixed his/her signature to the petition.” Under
B. The evidence in the record
{¶ 4} This case involves an effort to place on the May 3, 2022 primary-election ballot a liquor option to allow Sunday liquor sales in the Hanging Rock precinct. The Hanging Rock precinct is located in Lawrence County, and “Laidback Bar” is located in the precinct.
{¶ 5} Scott A. Pullins is the attorney for Brubaker, who is the general manager of Laidback Bar. On December 27, 2021, Pullins filed with the board the initial paperwork requesting a liquor-option petition for the Hanging Rock precinct. On December 29, the division notified Pullins that there were no permit holders who would be affected by the liquor-option proposal.
{¶ 6} On February 2, 2022, Brubaker filed with the board part-petitions containing approximately 40 signatures in support of the liquor-sales option. Brubaker did not file a copy of Form No. 5-N. Instead, he attempted to file a copy of the division‘s December 29 letter stating that there were no affected permit holders in the precinct. According to Brubaker, the board informed him “that the letter was not needed
{¶ 7} The board rejected the liquor-option petition because Brubaker did not submit a Form No. 5-N. On February 23, Toni Bradshaw, the deputy director of the board, notified Pullins in an email that the petition was “missing parts and incomplete” and that the option would not appear on the May 2022 ballot. Pullins replied to Bradshaw by email that same day, asking, “[C]an you send me a letter or some kind of explanation? Specifically, what parts were missing and incomplete?” On February 28, Bradshaw declined Pullins‘s request for an explanation on the ground that providing such information would constitute legal advice.
II. Procedural history
{¶ 8} On March 11, 2022, Brubaker filed with this court a complaint for a writ of mandamus against the board. He attached five exhibits to the complaint, including his own affidavit. We ordered the board to answer the complaint, and the board complied by filing an answer accompanied by two affidavits. The attachments to the complaint and answer are the only evidence submitted by the parties.
III. Legal analysis
A. Standard of review
{¶ 9} To be entitled to a writ of mandamus, Brubaker must establish by clear and convincing evidence that (1) he has a clear legal right to the requested relief, (2) the board has a clear legal duty to provide it, and (3) he does not have an adequate remedy in the ordinary course of the law. See State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. As to the third element, Brubaker lacks an adequate remedy in the ordinary course of the law due to the proximity of the May 3, 2022 primary election, which is less than 40 days away. See State ex rel. West v. LaRose, 161 Ohio St.3d 192, 2020-Ohio-4380, 161 N.E.3d 631, ¶ 15.
{¶ 10} The first two elements require us to determine whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable law. See State ex rel. Tam O‘Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 16. Brubaker has not alleged that the board engaged in fraud or corruption. An abuse of discretion “connotes an unreasonable, arbitrary, or unconscionable attitude.” State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
B. The board did not abuse its discretion or act contrary to law
{¶ 11} The essential facts of this case are not in dispute. And
ballot to include with the liquor-option petition an affidavit certifying that he gave notice to all permit holders who would be affected by the measure, if any, and to provide a list of those permit holders to the petition signers at the time of their signing. Brubaker did not comply with this requirement.
{¶ 12} In his merit brief, Brubaker suggests that his noncompliance should be excused for two reasons. Again, when he filed the petition, Brubaker attempted to give the board a copy of the letter from the division stating that there were no affected permit holders. In his first proposition of law, he argues that the board abused its discretion by not accepting the letter in lieu of an affidavit. This contention overlooks the fact that
{¶ 13} Although he does not explicitly use the term “substantial compliance,” Brubaker essentially argues that his efforts amounted to substantial compliance with the statute‘s requirements. But “it is well-settled that ‘election laws are mandatory and require strict compliance and that substantial compliance is acceptable only when an election provision expressly states that it is.’ ” State ex rel. Maras v. LaRose, ___ Ohio St.3d ___, 2022-Ohio-866, ___ N.E.3d ___, ¶ 23, quoting State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, ¶ 49. And
Scioto Conservancy Dist., 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus.
{¶ 14}
{¶ 15} But Brubaker could have complied with the affidavit requirement in
{¶ 16} For the foregoing reasons, we deny Brubaker‘s request for a writ of mandamus.
Writ denied.
DEWINE, J., concurs in judgment only.
Pullins Law Firm, L.L.C., and Scott A. Pullins, for relator.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, for respondent.