THE STATE EX REL. CONRATH, v. LAROSE, SECY. OF STATE, ET AL.
No. 2022-1141
SUPREME COURT OF OHIO
October 11, 2022
2022-Ohio-3594
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Conrath v. LaRose, Slip Opinion No. 2022-Ohio-3594.]
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-3594
THE STATE EX REL. CONRATH, v. LAROSE, SECY. OF STATE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Conrath v. LaRose, Slip Opinion No. 2022-Ohio-3594.]
Elections—Mandamus—
(No. 2022-1141—Submitted October 4, 2022—Decided October 11, 2022.)
IN MANDAMUS.
Per Curiam.
I. INTRODUCTION
{¶ 1} “If a person nominated in a primary election as a party candidate * * * withdraws as that candidate * * *, the vacancy in the party nomination so created may be filled by a district committee of the major political party that made the nomination at the primary election.”
{¶ 2} Respondent Ohio Secretary of State Frank LaRose decided that Conrath would not be certified to the ballot, and Conrath now seeks a writ of mandamus ordering her name to be placed on the ballot. For the reasons that follow, we grant the writ.
II. FACTS AND PROCEDURAL HISTORY
{¶ 3} Rhyan Goodman ran unopposed in the 2022 Democratic primary election for the office of state representative of House District 94, which comprises all or parts of Athens, Meigs, Morgan, and Washington Counties. Athens County is the district‘s most populous county. Due to a federal court‘s unprecedented decision to order the primary election for the Ohio House and Senate races to be held on a date different than that required by
{¶ 4} Six days after the primary election, on August 8, Goodman notified respondent Athens County Board of Elections of his “request to be removed from the ballot for the November 8th General Election.” At that time, the official result of the primary election had not yet been certified. Under
{¶ 5} Meanwhile, on August 17, the Athens County board reached a tie vote on whether to certify Conrath to the general-election ballot. The issue was referred to Secretary LaRose for a tiebreaking vote. See
{¶ 6} On September 16, Conrath filed this action against Secretary LaRose, the Athens County board, and additional respondents Meigs County Board of Elections, Morgan County Board of Elections, and Washington County Board of Elections, seeking a writ of mandamus ordering her name to be placed on the November 2022 general-election ballot.
III. DISCUSSION
{¶ 7} Mandamus is the appropriate action by which to challenge the secretary of state‘s tiebreaking decision under these circumstances. See
{¶ 8} Conrath has a clear legal right to have her name placed on the 2022 general-election ballot as the nominee of the Democratic Party for state representative of the 94th House district. The Athens County board‘s vote on whether to place Conrath‘s name on the ballot resulted in a tie. Pursuant to his authority under
{¶ 9} For the reasons that follow, we conclude that Secretary LaRose and two members of the Athens County Board of Elections,2 which is the board of elections for the most populous county in the 94th House District, acted in clear disregard of their legal duties to certify Conrath‘s name to the November 2022 Ohio general-election ballot as the Democratic Party‘s nominee for state representative. We further conclude that Conrath has a clear legal right to a writ of mandamus ordering her name to be placed on the ballot.
{¶ 10} A political party‘s authority to select a replacement nominee to fill a candidate vacancy in an election for a multicounty-district office arises under
If a person nominated in a primary election as a party candidate for election at the next general election, whose candidacy is to be submitted to the electors of a district comprised of more than one county but less than all of the counties of the state, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by a district committee of the major political party that made the nomination at the primary
election, if the committee‘s chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose.
(Emphasis added.)
{¶ 11} “[P]arty candidate” means:
[A]ny candidate who claims to be a member of a political party and who has been certified to appear on the office-type ballot at a general or special election as the nominee of a political party because the candidate has won the primary election of the candidate‘s party for the public office the candidate seeks, has been nominated under section 3517.012, or is selected by party committee in accordance with section 3513.31 of the Revised Code.
{¶ 12} This statutory language gives a political party authority to select a replacement nominee if a candidate who has been certified to appear on the general-election ballot as the party‘s nominee withdraws. On August 8, Goodman signaled his intention not to stand for election in the November general election. He had run unopposed in the primary election, and he had not yet been “certified” as the winner of the primary by the time he withdrew. Based on this, Secretary LaRose concluded that the district committee had lacked authority to select a replacement Democratic Party nominee because Goodman had not yet been legally certified “as a party candidate for election at the next general election.” See
{¶ 13} However, the deadline for a district committee to certify a replacement nominee is the “eighty-sixth day before the day of the general election.”
{¶ 14} In State ex rel. Barth v. Hamilton Cty. Bd. of Elections, 65 Ohio St.3d 219, 224-225, 602 N.E.2d 1130 (1992), we considered former
[T]he rule that an appointment cannot be made where no vacancy exists does not prevent appointments made in anticipation of a vacancy that ultimately occurs. In State ex rel. Norman v. Viebranz, 19 Ohio St.3d 146, 148, 483 N.E.2d 1176 (1985), we said: “In sum, it is the law of Ohio that there can be a valid appointment to an office in advance of the time the vacancy actually occurs. Prospective appointments to office are generally deemed to be effective, with this exception: If the term of the appointing body or officer will expire prior to or at the same time the vacancy will occur, then no power of prospective appointment exists.”
{¶ 15} Further, it is not an unusual concept in other contexts to validate a premature action once the condition precedent occurs. For example, even though a deadline to appeal a judgment is strict and sometimes jurisdictional, see
“It is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid [an unreasonable or absurd] result.”
[State ex rel. Cooper v. Savord,] 153 Ohio St. 367, 92 N.E.2d 390 (1950), paragraph one of the syllabus.
(First set of brackets sic.) State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 24 (lead opinion). We have specifically followed this prescription in election cases in order to protect electors’ opportunities to have a meaningful choice when voting. See, e.g., State ex rel. Ashbrook v. Brown, 39 Ohio St.3d 115, 116, 529 N.E.2d 896 (1988); State ex rel. Flex v. Gwin, 20 Ohio St.2d 29, 31, 252 N.E.2d 289 (1969), superseded by statute as stated in State ex rel. Ruehlmann v. Luken, 65 Ohio St.3d 1, 598 N.E.2d 1149 (1992).
{¶ 16} Secretary LaRose and the Athens County board each had a clear legal duty to follow not only the relevant statutes, but also this court‘s decision in Barth. In fact, the secretary of state has a specific statutory duty to “[c]ompel the observance by election officers in the several counties of the requirements of the election laws,”
{¶ 17} Disagreeing with this conclusion, one of the dissents stridently accuses this majority (and not for the first time) of judicial activism, even going so far as to state that the majority has “engage[d] in a now all-too-familiar pattern of replacing what the law actually says with what the majority needs it to say to achieve the outcome it desires” and musing, “At this point, one has to wonder whether election cases are governed by the Revised Code or simply the whims of the majority.” Dissenting opinion of Kennedy, J., ¶ 37; see also League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, ¶ 59, 141 (Kennedy and DeWine, JJ., dissenting); id. at ¶ 177 (Fischer, J., dissenting); League of Women Voters of Ohio v. Ohio Redistricting Comm., ___ Ohio St.3d ___, 2022-Ohio-1235, ___ N.E.3d ___, ¶ 90-91, 99, 107 (Kennedy, J. dissenting); id. at ¶ 129-130 (DeWine, J. dissenting); League of Women Voters of Ohio, ___ Ohio St.3d ___, 2022-Ohio-1727, ___ N.E.3d ___ at ¶ 23 (Kennedy, J., dissenting). In doing so, this and the other dissent suggest that the relevant statutes are clear and unambiguous. The flaw in the dissents’ arguments is that in Barth, this court interpreted the issue differently than the dissents do here in the context of a political party‘s attempt to anticipate an official‘s resignation and place that party‘s candidate on the general-election ballot. Id., 65 Ohio St.3d at 219, 602 N.E.2d 1130. If we read
{¶ 18} Moreover, the dissents’ assertions that
{¶ 19} Notwithstanding the extraordinary circumstances in which we are asked to apply
IV. CONCLUSION
{¶ 20} When Secretary LaRose and two members of the Athens County board voted not to certify Conrath to the ballot, they acted in clear disregard of applicable law—specifically, this Court‘s decision in Barth. Conrath has a clear legal right to have her name placed on the ballot as a result of the district committee‘s timely filed nomination of her and her acceptance of the nomination. By law, based on our holding in Barth, Goodman‘s anticipated withdrawal as the certified party candidate permitted the district committee‘s nomination process to occur before certification of the primary-election result that officially made Goodman a candidate on the general-election ballot. Respondents had a clear legal duty to follow Barth and place Conrath‘s name on the ballot. We therefore issue a writ of mandamus ordering respondents to place Tanya Conrath‘s name on the November 8, 2022 general-election ballot as the Democratic Party candidate for state representative of the 94th House District.
Writ granted.
O‘CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER and DEWINE, JJ.
FISCHER, J., dissents, with an opinion.
KENNEDY, J., dissenting.
{¶ 21} I dissent from the majority‘s decision. Under the plain terms of the Revised Code, relator, Tanya Conrath, is not entitled to a writ of mandamus ordering her name to be placed on the November 2022 general-election ballot. The justices in the majority once again choose to ignore the law and create their own rules for the benefit of one candidate.
{¶ 22} The introductory clause of
{¶ 23} The majority ignores the plain, unambiguous language of the conditions precedent established in
I. LAW AND ANALYSIS
A. Standard of review
{¶ 24} The interpretation of a statute is a question of law. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶ 6. “The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12.
B. R.C. 3513.31(B) and 3501.01(K)
{¶ 25} The authority of a district committee of a major political party to select a replacement nominee to fill a candidate that withdraws from an election for a multicounty-district office is set forth in
If a person nominated in a primary election as a party candidate for election at the next general election, whose candidacy is to be submitted to the electors of a district comprised of more than one county but less than all of the counties of the state, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by a district committee of the major political party that made the nomination at the primary election, if the committee‘s chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose.
(Emphasis added.)
{¶ 26} “Party candidate” is defined as
any candidate who claims to be a member of a political party and who has been certified to appear on the office-type ballot at a general or special election as the nominee of a political party because the candidate has won the primary election of the candidate‘s party for the public office the candidate seeks, has been nominated under section 3517.012, or is selected by party committee in accordance with section 3513.31 of the Revised Code.
C. R.C. 3513.31(B) is unambiguous and establishes conditions precedent
{¶ 27} None of the parties here argue that
{¶ 28} Therefore, the plain, unambiguous introductory “if” clause in
D. The district committee lacked statutory authority to nominate Conrath
{¶ 29} Here, Goodman gave notice of his desire to withdraw as a candidate on August 8. At that time, Goodman was not the party‘s certified candidate. Therefore, under the plain language of
E. The majority‘s reliance on Barth is misplaced
{¶ 30} To reach its public-policy-based decision, the majority ignores the plain, unambiguous language of
{¶ 31} In Barth, this court considered a different provision, former
{¶ 32} There are not two reasonable readings of
F. The absurdity doctrine does not apply
{¶ 33} The majority further supports its decision by determining that respondent Ohio Secretary of State Frank LaRose‘s interpretation of
{¶ 34} ” ‘The absurd-result exception to the plain-meaning rule of [statutory] construction’ applies ‘only [to] those cases in which the plain language of a statute results in an obviously unintended result.’ ” (Brackets and emphasis added in Meyer.) State ex rel. Meyer v. Warren Cty. Bd. of Elections, 165 Ohio St.3d 134, 2020-Ohio-4863, 176 N.E.3d 699, ¶ 14, quoting State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 26 (lead opinion). This court has explained:
Moreover, “even if the plain-language application of a statute would yield an absurd result, the absurdity doctrine does not permit a court to correct the absurdity unless it is ‘reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error * * *. The doctrine does not include substantive errors arising from a drafter‘s failure to appreciate the effect of certain provisions.’ ”
(Ellipsis added in Parker.) Id., quoting State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151, ¶ 28 (lead opinion), quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts 238 (2012).
{¶ 35} The absurdity doctrine does not apply here. There is no ministerial error in
II. CONCLUSION
{¶ 36} The very definition of judicial activism is a majority‘s “embody[ing] [its] opinions in law” and advancing its policy preferences over those of the legislature. Lochner v. New York, 198 U.S. 45, 75-76, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J, dissenting), overruled by Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). As the United States Supreme Court has explained, judicial activism is incongruous with our duty as judges:
Our duty is to read the statute according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation. When the language is plain, we have no right to insert words and phrases, so as to incorporate in the statute a new and distinct provision.
(Citation omitted.) United States v. Temple, 105 U.S. 97, 99, 26 L.Ed. 967 (1881).
{¶ 37} The majority‘s decision to ignore the law and impose the policy result it wants “comes at the expense of a predictable rule of law that applies equally to all.” State ex rel. Maras v. LaRose, ___ Ohio St.3d ___, 2022-Ohio-3295, ___ N.E.3d ___, ¶ 34 (DeWine, J., dissenting). In doing so, it engages in a now all-too-familiar pattern of replacing what the law actually says with what the majority needs it to say to achieve the outcome it desires. See, e.g., id.; State ex rel. DeMora v. LaRose, ___ Ohio St.3d ___, 2022-Ohio-2173, ___ N.E.3d ___; see also Gonidakis at *75-76 (criticizing this court‘s majority for applying “a strict proportionality test” in the General Assembly-redistricting cases “that cannot easily be found in the text of Ohio‘s Constitution“). At this point, one has to wonder whether election cases are governed by the Revised Code or simply the whims of the majority.
{¶ 38}
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
FISCHER, J., dissenting.
{¶ 39} I fully join the first dissenting opinion. I write separately to highlight additional points.
{¶ 40} As set forth in the first dissenting opinion, the analysis of the so-called per curiam opinion is puzzlingly premised on the notion that respondent Ohio Secretary of State Frank LaRose and the respondent boards of elections had a clear legal duty to follow the relevant statutes, not by applying the plain statutory language, but by refusing to apply the statutory language in order to avoid what the per curiam opinion terms “an impermissible legal absurdity,” per curiam opinion, ¶ 8.
I. The Extraordinary Factual Circumstances of this Case Are the Result of this Court‘s Previous Failure to Follow the Ohio Constitution
{¶ 41} The so-called per curiam opinion places the blame for the unusual factual circumstances in this case on “the unprecedented intervention of the federal court,” per curiam opinion at ¶ 13. I cannot help but note that the unusual factual circumstances in this case are actually the direct result of this court‘s failure to adhere to
{¶ 42} In those cases, I emphasized that the plain language of
{¶ 43} To the extent that this case highlights any absurdity, it is that this court‘s insistence on not applying the language of the Ohio Constitution as written will ultimately result in the further desire to bend the language of the law to clean up the messes that this court has created.
II. The Tone of the Per Curiam Opinion Falls Below the Standard Befitting Per Curiam Opinions of this Court
{¶ 44} In addition to my concerns about this court‘s failure to apply the Ohio Constitution and the Revised Code as written, I also have concerns about the tone of the so-called per curiam opinion, which I find to be insulting and inflammatory, beyond merely setting forth a differing view of the law (a view that I respectfully consider to be incorrect).
{¶ 45} For example, the third footnote of the per curiam opinion contains a citation to 56 paragraphs of my dissenting opinion in the first General Assembly-redistricting case as a purported example of what it says is my “view that an anti-gerrymandering provision should not operate to prohibit gerrymandering.” Per curiam opinion at fn. 3. Not once—neither in that opinion nor in any other opinion I have written—have I said such a thing. My view has been consistent, as stated above: the wording of
{¶ 46} As a second example, the per curiam opinion calls my refusal to graft extratextual flexibility into the language of
{¶ 47} Finally, the so-called per curiam opinion, signed on by four of my colleagues, fails to follow or meet at least seven of the aspirations of the Judicial Creed of professionalism. See Supreme Court of Ohio Commission on Professionalism, Professional Ideals for Ohio Lawyers and Judges, A Judicial Creed, at 9, available at https://www.supremecourt.ohio.gov/docs/Publications/AttySvcs/proIdeals.pdf (accessed Oct. 11, 2022) [perma.cc/A7BF-CQVK]. We as a court ask all judicial officers in Ohio to strive to follow this creed; however, those joining the per curiam opinion above seem to ignore certain of its principles, including:
I RECOGNIZE my role as a guardian of our system of jurisprudence dedicated to equal justice under law for all persons.
I BELIEVE that my role requires scholarship, diligence, personal integrity and a dedication to the attainment of justice.
I KNOW that I must not only be fair but also give the appearance of being fair.
I RECOGNIZE that the dignity of my office requires the highest level of judicial demeanor.
I WILL treat all persons, including litigants, lawyers, witnesses, jurors, judicial colleagues and court staff with dignity and courtesy and insist that others do likewise.
I WILL strive to conduct my judicial responsibilities and obligations in a timely manner and will be respectful of others’ time and schedules.
I WILL aspire every day to make the court I serve a model of justice and truth.
(Capitalization sic.)
{¶ 48} If members of the public reading this opinion had any knowledge of what has occurred regarding this decision in the last hours before the decision‘s release, they would understand how much the wording and timing of the so-called per curiam opinion fail to meet those aspirations.
III. Conclusion
{¶ 49}
{¶ 50} I also note the lack of professionalism and professional courtesy of the authors
McTigue & Colombo, L.L.C., Donald J. McTigue, and J. Corey Colombo, for relator.
Dave Yost, Attorney General, and Julie M. Pfeiffer, Assistant Attorney General; and Dickinson Wright, P.L.L.C., David A. Lockshaw Jr., Terrence O‘Donnell, and Manuel D. Cardona, for respondent Secretary of State Frank LaRose.
James K. Stanley, Meigs County Prosecuting Attorney, for respondent Meigs County Board of Elections.
Nicole T. Coil, Washington County Prosecuting Attorney, for respondent Washington County Board of Elections.