I. Introduction
{¶ 1} This case primarily addresses a provision of the state election code commonly known as the sore-loser statute. In essence, R.C. 3513.04 disqualifies
{¶ 2} But, what happens when a new form of government is adopted at the primary election resulting in a substantial change in law, such that the former public office simply ceases to exist? Are those who were candidates for that abolished office in the primary — including even those who were successfully nominated by the voters — left completely out in the cold because they didn’t anticipate that the old office would be abolished?
{¶ 3} These questions reach this court after a decision by the Ohio Secretary of State concluded that three persons who sought an abolished office are in fact legally barred from seeking a newly created office. The decision was based upon her understanding of R.C. 3513.04 and the gloss placed upon it by State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997),
II. The Factual Background
{¶ 4} A “Joint Stipulation of Facts and Exhibits” was filed on October 25, 2007. It includes a six-page legal opinion composed by Ohio Secretary of State Jennifer L. Brunner explaining her decision on the matter now before this court. By agreement of counsel reflected on the record on October 29 at the oral hearing of this matter, several additional facts were memorialized. There is no dispute of fact material to the resolution of this case.
{¶ 5} Relators-plaintiffs are Amie Ernst, Bob Bergstrom, and Eugene Krop-felder (the “candidates”). All three are qualified electors of the city of Greenfield in Highland County, Ohio. Defendants-respondents are the Highland County Board of Elections, its four individual members, and Secretary Brunner.
{¶ 7} Greenfield held a special election simultaneously with the May 8 primary election. Voters considered an initiative petition that proposed to change the fundamental form of municipal government to a “City Manager Plan.” The ballot language specified that the question before voters was whether to adopt the “plan of government, as provided in chapter 705 sections 705.51 through 705.60 of the Revised Code [of Ohio].” The initiative was adopted. Practically speaking, that rendered all primary nominations for city council under Greenfield’s previous plan of government meaningless. In fact, the local board of elections, with the concurrence of the Secretary of State’s Office, issued no certificates of nomination to anyone based upon results of the primary election. It was implicitly recognized that no comparable race would appear on the November 2007 general election ballot.
{¶ 8} Ernst, Bergstrom, and Kropfelder each timely filed nominating petitions with the board of elections seeking election to the new, nonpartisan Greenfield City Council. They did so by the statutory deadline in August 2007. On August 29, however, the Highland County Board of Elections split two-to-two on a motion to certify their nominating petitions for the general election under the newly adopted city manager plan. Pursuant to Ohio law, the secretary of state breaks tie votes at local boards of elections. On October 5 she did so, voting against the motion to certify the nominating petitions of the candidates.
{¶ 9} As matters stand, the candidates’ names appear on both absentee ballots and on ballots intended for use within Greenfield at the upcoming general election. Unless this court acts favorably, however, any votes cast for the three candidates will not be counted. In addition to these three people, three other candidates are named on ballots, and two more people are running write-in races for the five newly created positions on Greenfield City Council.
III. The Relief Sought
{¶ 10} The candidates have no right to appeal the secretary’s decision breaking the tie vote of the Highland County Board of Elections. State ex rel. The Limited, Inc. v. Franklin Cty. Bd. of Elections (1993),
{¶ 11} No one contends that fraud or corruption is presented here. Accordingly, the “abuse of discretion” standard must be met in order to trigger issuance of a writ. That legal standard is used in a variety of contexts under Ohio law. In its classic formulation, an abuse of discretion “connotes more than an error of law or judgment” and implies that a decision which is the focus of judicial examination was “unreasonable, arbitrary, or unconscionable.” State ex rel. Worrell v. Ohio Police & Fire Pension Fund,
{¶ 12} The abuse-of-discretion standard is not toothless. It does not insulate every ruling. Thus, while the Supreme Court of Ohio has repeatedly held that “an abuse of discretion connotes more than an error of law or of judgment,” if an administrative officer’s “interpretation” of a statute was not “reasonable,” and not “within the contemplation of the statute” then an abuse of his discretion may be found. Strongsville Bd. of Edn. v. Zaino (2001),
IV. The Statutory Framework Applicable Here
{¶ 13} As last amended in May 2006, the third unnumbered paragraph of R.C. 3513.04 provides:
“No person who seeks party nomination for an office or position at a primary election by declaration of candidacy or by declaration of intent to be a write-in candidate and no person who is a first choice for president of candidates seeking election as delegates and alternates to the national conven*78 tions of the different major political parties * * * shall be permitted to become a candidate by nominating petition or by declaration of intent to be a urrite-in candidate at the following general election for any office other than * * * [state or local Boards of Education, or Township Trustee].” (Emphasis added.)
{¶ 14} The Supreme Court has called this the “sore loser” statute, observing earlier this month that it “generally bars a person losing in a partisan primary election from participating as a candidate for another office in the succeeding general election, except for certain candidates * * * who run for a board of education at the general election.” State ex rel. Brinda, supra, at ¶ 26. A “previous, broader version of R.C. 3513.04” was, according to the Brinda court, examined in State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997),
{¶ 15} In passing, it is worth noting that three members of the Ohio Supreme Court dissented in Purdy and would have found “constitutional deprivation” from the application of the statute prohibiting successive candidacies for different offices.
{¶ 16} Former Secretary of State Bob Taft’s view of the intent behind the sore-loser statute was cited approvingly by the Court of Appeals for the Third Appellate District when it examined the public policy behind R.C. 3513.04 in State ex rel. Sweet v. Hancock Cty. Bd. of Elections (Oct. 25, 1993), Hancock App. No. 5-93-43,
V. Rules of Statutory Construction
{¶ 17} “The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law-making body which enacted it.” State v. Hairston,
{¶ 18} Determining “whether contracts, ballot initiatives, statutes or even constitutional provisions are ambiguous” has occupied much judicial effort, because “no clear standard has evolved to determine the level of lucidity necessary for a writing to be unambiguous.” State v. Porterfield,
VI. Statutory Ambiguity in R.C. 3513.04
{¶ 19} The statute begins with the words “[n]o person who seeks party nomination for an office or position at a primary election * * That phrase
{¶ 20} Leaving aside the precedential value of the Third District’s ruling that this statute is ambiguous (premised squarely upon the same conclusion reached by a former secretary of state), Secretary Brunner has read the relevant portion of R.C. 3513.04 as providing that “once a person seeks nomination in a primary by filing a declaration of candidacy they cannot become a candidate for any office at the subsequent general election * * *.” (Emphasis sic.) Decision of Secretary Brunner at 4. However, in this court’s view, that conclusion does not necessarily follow from the statutory language. It is merely one gloss on the language, and at that is not consistent with the common understanding that this is a sore-loser statute. These candidates never “lost” any election relevant to the newly created Greenfield Council seats. A sensible alternative reading of R.C. 3513.04 is that one never genuinely “seeks” a public office or position if that office or position is legally abolished, as occurred here. That reading preserves the sore-loser rule and gives effect to the intent of the law-making body, while avoiding a plainly unintended result.
{¶ 21} Secretary Brunner recognized in her decision that “the facts of this case are rare, or unique.” Id. Given this setting, it would be a harsh rule indeed to completely eliminate three candidates from the public’s consideration at next week’s general election in Greenfield merely because — before the rules of the game were changed — they indicated interest in public offices that no longer exist.
{¶ 22} At oral argument, counsel for the secretary and the board urged that these public-spirited citizens should be held to have lost their opportunity to be candidates this year under the new form of government. They assert that such a result would be sensible because they read the statutory language as unambiguous, and practically speaking, these candidates ought to have anticipated that the voters might abolish the old form of government in Greenfield. That is, before the primary election was even held, they contend, the candidates should have known that Greenfield’s voters would opt to move to the new city manager form of government. The problem with that argument is that clairvoyance is not a requirement of law. Centuries of American Presidents, judges, and scholars have recognized what President Gerald R. Ford made explicit upon taking his oath of office: “[0]ur great Republic is a government of laws, not of men.” Public Papers of the Presidents: Gerald R. Ford (1975) 1-2. Practically speaking, that adage means that legal rules are to be made and known in advance and not
{¶ 28} There are other significant reasons to interpret R.C. 3513.04 in favor of the position urged by these candidates. One is the interrelationship of the sore-loser statute with other provisions in the state elections code, including one in particular that was triggered by the adoption of the city manager form of government. Looking past the statutory language in R.C. 3513.04 is an unremarkable way to approach a case of this type. For instance, the Supreme Court of the United States has recognized that “ascertainment of the meaning apparent on the face of a single statute need not end the inquiry * * * because the plain-meaning rule is ‘rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.’ * * * [Thus] [t]he circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect.” Watt v. Alaska (1981),
{¶ 24} There is a broader reason to read R.C. 3513.04 favorably to these candidates. Well-established Ohio law recognizes the obligation of the judiciary “to liberally construe words limiting the right of a person to hold office in favor of those seeking to hold office so that the public may have the benefit of choice from all qualified persons.” State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115
{¶ 25} Finally, in R.C. 1.49 the General Assembly has enacted a list of factors to consider “[i]f a statute is ambiguous.” Among other things, a court may consider the “object sought to be attained” with a particular law, and the “consequences of a particular construction.” Both point toward the reading of R.C. 3513.04 advanced by the candidates. When a public office has been eliminated, there are none of the concerns present in the classic sore-loser situation. The consequence of adopting the secretary’s reading of R.C. 3513.04, on the other hand, would simply be to diminish the field of candidates available to the voters. There is no public good served by unduly limiting choices for Greenfield’s Council being selected under the new plan of government. Indeed, that reading of R.C. 3513.04 has particularly harsh consequence for the two of these candidates who were regarded highly enough to have apparently been nominated to serve in the old version of city council. America’s participatory democracy works best, as countless court decisions recognize, when the law encourages candidates to step forward rather than eliminating them from public consideration for no sensible reason.
{¶26} R.C. 1.49(F) instructs a court to also consider the “administrative construction of the statute” in resolving ambiguities about the intention of the legislature. Due to its peculiar facts, this case is one of first impression under R.C. 3513.04. While Secretary Brunner concluded that this case was controlled by the recent Supreme Court decision in Purdy,
VIL The Constitutional Arguments
{¶ 27} A variety of constitutional arguments are advanced relative to how rights of the candidates would be infringed assuming the secretary’s reading of
VIII. Conclusion
{¶ 28} For the foregoing reasons, the court will render final judgment in favor of relators and grant a writ of mandamus. The Highland County Board of Elections shall legally certify the candidates’ nominating petitions for the November 7, 2007 general election ballot, and cease advising prospective voters that ballots cast for any of them may not be effective legally. A separate and final judgment consistent with this opinion shall be drafted by counsel for relators, promptly circulated, and submitted to the court.
So ordered.
Notes
. Judge Learned Hand captured the point: "One school says that the judge must follow the letter of the law absolutely. I call this the dictionary school. No matter what the result is, he must read the words in their usual meaning and stop where they stop. No judges have ever carried on literally in that spirit, and they would not be long tolerated if they did. Nobody would in fact condemn the surgeon who bled a man in the streets to cure him because there was a law against drawing blood in the streets.” “How Far Is a Judge Free in Rendering a Decision?” (radio broadcast), 14 May 1933, reprinted in The Spirit of Liberty (2d Ed.1953) 103, 107.