Case Information
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[Cite as
State ex rel. Greene v. Montgomery Cty. Bd. of Elections
,
T HE TATE EX REL . G REENE , A PPELLANT , v. M ONTGOMERY OUNTY B OARD OF E LECTIONS ET AL ., A PPELLEES .
[Cite as
State ex rel. Greene v. Montgomery Cty. Bd. of Elections
,
Mаndamus — Elections — Primary elections — Petition for placement of name
on ballot for mayor — Petition rejected for lack of sufficient number of valid signatures — Board of elections did not abuse its discretion in applying statutory criteria for invalidating signatures when city charter contains no criteria — Writ denied.
(No. 2009-0586 — Submitted April 8, 2009 — Decided April 13, 2009.) A PPEAL from the Court of Appeals for Montgomery County, No. 23338. __________________
Per Curiam. This is an appeal as of right from a judgment denying a writ of mandamus to compel the placement of the name of appellant, James R. Greene III, on the May 5, 2009 primary-election ballot for the office of mayor of the city of Dayton, Ohio. Because the court of appeals properly determined that Greene did not establish his entitlement to the writ, we affirm. On March 20, 2009, Greene filed a pro se complaint in the Court
of Appeals for Montgomery County for a writ of mandamus to compel appellees, the Montgomery County Board of Elections, its members, its director, and its deputy director, to place his name on the May 5 primary-election ballot for mayor of Dayton. Greene is an attorney. In his verified complaint, Greene alleged the following. On March
6, Greene filed a petition with appellee Montgomery County Board of Elections to be a candidate for mayor. The pеtition was required to contain “at least 500 signatures of registered electors of the municipality.” Section 7(A), Dayton Charter. On March 10, the board of elections determined that the petition contained only 398 valid signatures, and it thus refused to place Greene’s name on the May 5 primary-election ballot.
{¶ 4} The board of elections struck 213 signatures from the petition. Greene alleged that the board of elections claimed to have invalidated these 213 signatures for the following reasons: 84 signatures because the рersons were not qualified electors, 72 signatures because they did not meet certain board standards, and 57 signatures because the persons lived “out of the area.” Greene alleged that 104 of these signatures were improperly invalidated on grounds not specified by the Dayton Charter. In a subsequent trial brief, Greene claimed that 110 of the
signatures were improperly invalidated by the board of elections. In appellees’ trial brief, they claimed that of the 213 signatures the board struck from Greene’s petition, 84 were invalidated because the board could not match the names to the names contained in the voter-registration records on file with the board, 72 were rejected because the signatures or other legal marks did not resemble the signatures or legal marks оn the voter-registration records, and the remaining 57 signatures were invalidated because the addresses on the petitions did not match the addresses on the voter-registration cards and it was therefore impossible to verify that the signers were registered eleсtors of Dayton. Appellees’ brief was supported by an affidavit. On March 27, the court of appeals held an expedited evidentiary
hearing on Greene’s mandamus claim. The court of appeals denied the writ on the same day: “Upon due consideration of the facts adduced at the March 27,
2009 hearing, including testimony from Gregory Gantt, Chairman of the Montgomery County Board of Elections; Steven P. Harsman, Director of the
January Term, 2009
Montgomery County Board of Elections; and Henderson Scott, Montgomery County Board of Electiоns employee, in addition to the arguments set forth in the parties’ respective briefs, this Court does not find that Greene has demonstrated a sufficient basis to justify extraordinary relief. Specifically, Greene has failed to meet his burden of establishing that he has a clear legal right to his name being placed on the May 5, 2009 primary election ballot, and that Respondents have a clear legal duty to place his name on said ballot.” On March 30, Greene filed a notice of appeal from the court of
appeals’ judgment as well as a motion for emergency relief and request for oral argument. On March 31, we ordered the immediate transmission of the court of appeals record and instructed the parties to file their merit briefs by April 8. We denied Greene’s motion for emergency relief and request for oral argument. This cause is now before the court for our consideration of the merits of this appeal.
Mandamus To be entitled to the requested writ of mandamus, Greene must
establish a clear legal right to certification of his candidacy and placement of his
name on the May 5 election ballot,
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a corresponding clear legal duty on the part of
the board of elections and its members, and the lack of an adequate remedy in the
ordinary course of law.
State ex rel. Grounds v. Hocking Cty. Bd. of Elections
,
{¶ 11} For the remaining requirements, to establish the requisite legal right and legal duty, Greene “must prove that the board of elections engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or other pertinent law.” Rust v. Lucas Cty. Bd. of Elections , 108 Ohio St.3d 139, 2005- Ohio-5795, 841 N.E.2d 766, ¶ 8. There is no evidence or claim of fraud or corruption here, so the dispositive issue is whether the board of electiоns abused its discretion or clearly disregarded applicable law by determining that Greene’s nominating petition did not contain the required number of valid signatures to require his placement on the May 5 primary-election ballot.
Dayton Charter Greene contends that he has established the requisite legal right
and legal duty because the board of elections and its members and officials
abused their discretion and clearly disregarded applicable provisions of the
Dayton Charter by rejecting the signatures on his nominating petition and fаiling
to place his name on the May 5 primary-election ballot as a candidate for mayor
of Dayton. “An abuse of discretion implies an unreasonable, arbitrary, or
unconscionable attitude.”
State ex rel. Cooker Restaurant Corp. v. Montgomery
Cty. Bd. оf Elections
(1997),
provides: “Candidates for * * * Mayor under the provisions of this Charter
shall be nominated by a primary election which shall be held in odd-numbered years on the day designated by general law for the holding оf primary elections. * * * The name of any registered elector of the City shall be printed upon the primary ballot * * * and be placed on the voting machine when a petition in the form hereinafter prescribed shall have been filed in his behalf with the Board of Elеctions, and such petition shall have been signed by at least 500 signatures of registered electors of the municipality .” (Emphasis added.)
January Term, 2009
{¶ 15} Greene claims that the board of elections improperly invalidated about 110 signatures from his petition by using grounds other than those set forth in the Daytоn Charter.
{¶ 16} Greene’s claim lacks merit for the following reasons. First, the board of elections properly applied nonconflicting statutes to determine whether the charter requirement of 500 signatures of registered Dayton electors had been met. Section 12 of the Dayton Charter incorporates these statutory provisions by providing that “[a]ll elections shall be conducted * * * by the election authorities prescribed by general election laws, and, except as otherwise provided herein, the general election laws shall control in all such elections.” The charter does not specify how the board of elections is to
determine when a nominating petition for a mayoral candidate contains the
requisite “500 signatures of registered electors of the municipality.” Under these
circumstances, the board of elections did not abuse its discretion by applying
statutory election provisions in its determination. See, e.g.,
State ex rel. Vickers v.
Summit Cty. Council
,
State ex rel. Froelich v. Montgomery Cty. Bd. of Elections
(1979), 65 Ohio
App.2d 23, 25-26,
issue here. Under R.C. 3501.11(K), the board of elections had a duty to
“[r]eview, examine, and certify the sufficiency and validity of” Greene’s petition.
See also
State ex rel. Sinay v. Sodders
(1997), 80 Ohio St.3d 224, 230, 685
N.E.2d 754. “[B]oards of election are required to compare petition signatures
with voter registration cards to determine if the signatures are genuine.”
State ex
rel. Yiamouyiannis v. Taft
(1992),
requirement of Section 7(B) cited by Greene, prevented the board of elections
from invalidating the defective signatures. See, e.g.,
State ex rel. Kennedy v.
Cuyahoga Cty. Bd. of Elections
(1976),
January Term, 2009
3501.11(K) provision imposing duty on boards of election to review, examine, and certify the sufficiency and validity of petitions and nominating papers, because charter made no reference to board and did not purport to negate duties imposed on board by statute). Finally, the record transmitted to this court does not include a
complete transcript of the March 27 evidentiary hearing before the court of
appeals. Although appellees attached a partial transcript of the hearing to their
brief, Greene did not submit a complete copy of the transcript with his brief.
Without the transcript, we have “ ‘no choice but to presume the validity of the
lower court’s proceedings, and affirm.’ ”
Crane v. Perry Cty. Bd. of Elections
,
107 Ohio St.3d 287,
clearly disregarded applicable law by invalidating the signatures on Greene’s nominating petition and determining that he had insufficient valid signatures to be certified as a candidаte for mayor.
Conclusion For the foregoing reasons, Greene failed to establish a clear legal
right to placement of his name on the May 5, 2009 primary-election ballot as a candidate for mayor of Dayton or a corresponding clear legal duty оn the part of
S C the board of elections and the rest of the appellees to place his name on the ballot. Therefore, we affirm the judgment of the court of appeals denying the writ of mandamus.
Judgment affirmed. M OYER , C.J., and P FEIFER , L UNDBERG TRATTON , O’C ONNOR , O’D ONNELL , L ANZINGER , and UPP , JJ., concur.
__________________
James R. Greene III, pro se.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Victor T. Whisman, Assistant Prosecuting Attorney, for appellees.
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